[Federal Register Volume 66, Number 10 (Tuesday, January 16, 2001)]
[Rules and Regulations]
[Pages 3782-3807]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 01-219]
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Part VI
Environmental Protection Agency
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40 CFR Parts 31 and 35
Environmental Program Grants for Tribes; Final Rule
Federal Register / Vol. 66, No. 10 / Tuesday, January 16, 2001 /
Rules and Regulations
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ENVIRONMENTAL PROTECTION AGENCY
Environmental Program Grants for Tribes
40 CFR Parts 31 and 35
[FRL-6929-5]
RIN 2030-AA56
Environmental Program Grants for Tribes
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: This final rule revises and updates requirements in several
Environmental Protection Agency (EPA) regulations governing grants to
Indian Tribes and Intertribal Consortia. It creates a new Tribal-
specific subpart which contains only the provisions for environmental
program grants that apply to Tribes; simplifies, clarifies, and
streamlines current provisions for environmental program grants to
Tribes; and addresses the Performance Partnership Grant (PPG) program
for Tribes. The rule includes results-oriented approaches to planning
and managing environmental programs. The PPG program fosters EPA's
continuing efforts to improve partnerships with its Tribal recipients
by increasing flexibility in using environmental program funding. The
regulation reflects efforts by EPA and its Tribal partners to increase
administrative and programmatic flexibility for Tribes while moving
toward improved environmental protection. (A regulation governing
environmental program grants to State, interstate, and local government
agencies published in the Federal Register of January 9, 2001.)
DATES: This regulation is effective February 15, 2001. This regulation
applies to new grants awarded after February 15, 2001.
ADDRESSES: Although this regulation is final, comments may be submitted
to the person identified in the section below at any time.
FOR FURTHER INFORMATION CONTACT: Michelle McClendon, Grants Policy,
Information, and Training Branch (3903R), United States Environmental
Protection Agency, 1200 Pennsylvania Ave., Washington, D.C. 20460,
Telephone: 202-564-5357, McClendon.Michelle@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Regulated Entities
Entities eligible to receive the environmental grants listed in 40
CFR 35.501 are regulated by this rule. Regulated categories and
entities include:
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Category Regulated Entities
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Government................................ Federally recognized Indian
Tribal Governments
Other Entities............................ Intertribal Consortia
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that could potentially
be regulated by this action. Other types of entities not listed in the
table could also be regulated. To determine whether your organization
is regulated by this action, you should carefully examine the
definitions of Tribe and Intertribal Consortium in Sec. 35.502 and in
the program-specific rules found following Sec. 35.540 of the rule. If
you have questions regarding the applicability of this action to a
particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
II. Comments and Record
The record of this final rule includes copies of the proposed and
final rule, comments received on the rule, EPA's responses to those
comments, and other relevant documents that support the rule. It is
available for inspection from 9 am to 4 pm (Eastern Time), Monday
through Friday, excluding legal holidays, at the Water Docket, U.S. EPA
Headquarters, 401 M Street, SW; East Tower Basement; Washington, DC
20460. For access to docket materials, please call (202) 260-3027 to
schedule an appointment.
III. Background
EPA proposed a rule for environmental program grants for Indian
Tribes on July 23, 1999 (64 FR 40084). EPA received 16 letters of
comment on the proposed rule. A summary of the comments and EPA's
response are included in this preamble. The preamble also summarizes a
few changes to the rule EPA determined necessary to clarify various
provisions. This publication makes the rule final.
The United States Government has a unique legal relationship with
Tribal governments as set forth in the United States Constitution,
treaties, statutes, executive orders, and court decisions. EPA
recognized the uniqueness of Tribal governments by issuing and
reaffirming its 1984 policy on the ``Administration of Environmental
Programs on Indian Reservations.'' Specifically, EPA recognizes the
existence of the trust responsibility in Principle Number 5 of its
Indian Policy, which states that the Agency will assure that Tribal
concerns and interests will be considered when Agency actions may
affect Tribal environments. Additionally, in 1994, the President of the
United States issued a presidential memorandum for the heads of
Executive Departments and Agencies reaffirming the government-to-
government relationships with Native American Tribal Governments. Most
recently, on May 14, 1998, the President issued Executive Order 13084,
``Consultation and Coordination With Tribal Governments.'' The
Executive Order addresses consultation and collaboration with Indian
Tribal governments in developing regulatory policies on federal matters
affecting their communities, reducing the imposition of unfunded
mandates on Indian Tribal governments, and streamlining the application
process and increasing the availability of statutory or regulatory
waivers for Indian Tribal governments. Consistent with these
principles, this regulation provides an easy-to-use Tribal-specific
subpart to optimize the administration of Tribal assistance programs
through increased flexibility and to remove procedural impediments to
effective environmental programs for Indian Tribes.
In various program specific regulations in this subpart, we have
used terms such as ``treatment as a State'' or ``treatment in a manner
similar to a State.'' We have used those terms because they are in many
of the statutes authorizing grants to Tribes. EPA recognizes that
Tribes are sovereign nations with a unique legal status and a
relationship to the federal government that is significantly different
than that of States. EPA believes that Congress did not intend to alter
this relationship when it authorized treatment of Tribes ``as States;''
rather, the purpose was to reflect an intent that, insofar as possible,
Tribes should assume a role in implementing the environmental statutes
in Indian country comparable to the role States play outside of Indian
country.
Generally, the administration of financial assistance to Tribes is
the same as the administration of financial assistance to States.
However, there are provisions in some assistance programs unique to
Indian Tribes. For example, Indian Tribes currently compete with each
other for limited financial resources in many of the Tribal
environmental grant programs listed under Sec. 35.501(a) of the rule.
Thus, the stability of annual grant funding for
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State, interstate, and local environmental program grants (see 40 CFR
part 35, subpart A) is not shared by Tribes. Indian Tribes do not
currently receive and cannot rely on continuity of funding from year to
year. This uncertainty in financial assistance makes long-term
environmental planning difficult. Therefore, the administration of
these programs by EPA requires a different approach compared to the
approach used when administering an environmental program for State,
interstate, or local government agencies.
EPA and many Indian Tribal governments have forged partnerships on
a government-to-government basis. An important mechanism to further
support these relationships was established when EPA requested and
received authorization for a PPG program for Indian Tribes and
Intertribal Consortia. (Omnibus Consolidated Rescissions and
Appropriations Act of 1996, Pub. L. 104-134, 110 Stat. 1321, 1321-299
(1996); Departments of Veterans Affairs and Housing and Urban
Development, and Independent Agencies Appropriations Act, 1998, Pub. L.
105-65, 111 Stat. 1344, 1373 (1997)). PPGs allow eligible Tribes and
Intertribal Consortia to combine environmental program grants into a
single grant in order to improve environmental performance, increase
programmatic flexibility, achieve administrative savings, and
strengthen the partnerships between Indian Tribes and EPA.
Environmental program grants that may be included in PPGs are listed in
40 CFR 35.501(a) and funded under EPA's State and Tribal Assistance
Grant (STAG) appropriation account.
This regulation will be codified in 40 CFR part 35, subpart B, as
``Environmental Program Grants for Tribes.'' Subpart B incorporates
administrative provisions for grants formerly included in 40 CFR part
35, subparts A and Q. This regulation supplements EPA's regulation,
``Uniform Administrative Requirements for Grants and Cooperative
Agreements to State and Local Governments,'' contained in 40 CFR part
31, which will apply to grants awarded under this regulation (including
grants to Intertribal Consortia as defined in Sec. 35.502, regardless
of whether the Consortia are organized as nonprofit corporations under
State or Tribal law). We have used the terms ``Tribe'' and
``Intertribal Consortium'' to refer to the entities eligible to receive
grants throughout this subpart. Those terms are defined in Sec. 35.502
for environmental programs that do not include their own program-
specific definitions. When the definition of either term is different
in a specific program provision in Secs. 35.540 through 35.718 of the
rule, the specific definition will govern.
IV. Requirements for All Environmental Program Grants
Sections 35.500 through 35.518 apply to all environmental program
grants covered by 40 CFR part 35, subpart B, including PPGs. This rule
contains changes to foster Tribal-EPA partnerships, improve
accountability for environmental and program performance, and
streamline administrative requirements. Some of the rule's key features
are discussed below.
Tribal-EPA partnerships. To foster joint planning and priority
setting, the rule explicitly requires consideration of Tribal
priorities along with national and regional guidance in negotiating all
grant work plans. All Tribes are provided flexibility through the work
plan negotiation process, and, in particular, through their ability to
organize work plan components in whatever way fits the Tribe best.
However, EPA must be able to link the grant work plans to EPA's
Government Performance and Results Act Goal and Objective architecture.
Where appropriate, the grant work plan will reflect both EPA and Tribal
roles and responsibilities in carrying out work plan commitments and
there will be a negotiated process for jointly evaluating performance.
Tribes applying for PPGs will have still greater flexibility as
described in the PPG discussion below. The EPA Regional Administrator
must consult with the National Program Manager before agreeing to a PPG
work plan that deviates significantly from national program guidance.
Core performance measures. Core performance measures for Tribal
programs are still evolving and may be different from those negotiated
by EPA National Program Managers (NPM) with the States. When EPA has
negotiated these measures with the Tribes, they will be included in
national program guidance and incorporated, as appropriate, into
Tribal/EPA Environmental Agreements and grant work plans as the basis
for reporting requirements. Until the Tribal core performance measures
are further developed, the regions should use significant work plan
goals, objectives or commitments for measuring performance, as
appropriate.
Accountability. The rule includes results-oriented approaches to
planning and managing environmental programs. Definitions and other
aspects of the rule are compatible with GPRA and reflect efforts to
establish goals and objectives as well as environmental and program
performance measures at both the national and Tribal levels. The rule
recognizes the need for a mix of outcome (results) and output
(activity) measures for management purposes. The rule encourages Tribes
and Intertribal Consortia to organize their work plans around goals and
objectives to reflect the new GPRA requirements.
Administrative changes. Under the rule, Tribes can negotiate
funding periods of more than one year with EPA, thereby improving
stability in the programs. EPA recommends, however, that funding
periods not exceed five years because it is difficult to account for
funds and maintain records for longer periods. The funding period of a
General Assistance Program (GAP) grant cannot exceed four years. (The
term ``funding period'' used in this preamble and 40 CFR 31.23 has the
same meaning as the term ``budget period'' on EPA's grant and
cooperative agreement and amendment forms.)
The rule streamlines some requirements and eliminates other
requirements associated with post-award changes to grant work plan
commitments and budgets. It replaces the requirements regarding changes
found in 40 CFR 31.30. Prior written approval from EPA is still
required for significant changes in a recipient's work plan
commitments. Written, but not prior, approval is required for work that
will result in a need for increases in grant amounts and extensions of
the funding period. However, recipients beginning such work without
prior, written approval do so at their own financial risk. EPA approval
is no longer required for other changes in the work plan, budget, key
persons, or to carry out portions of the work through subgrants or
contracts unless the Regional Administrator determines, on a case-by-
case basis, that circumstances warrant imposing additional approval
requirements on a particular recipient.
Pre-award costs. Pre-award costs may be reimbursed under the grants
without prior approval so long as they are incurred within the funding
period, identified in the approved grant application, and would have
been allowable if incurred after the award.
Intertribal Consortia. Under this rule, EPA will treat a group of
Tribes that applies for a grant (called an Intertribal Consortium in
the rule) in the same manner as a single Tribe. Thus, in the absence of
clear Congressional intent to the contrary, if a Tribe is eligible for
a particular grant, EPA will also treat a group of individually
eligible Tribes as
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eligible for the grant. EPA believes this approach is a practical,
reasonable and prudent way to help interested Tribes strengthen
environmental protection when limited funding is available to support
Tribal environmental programs. Tribes that form Consortia may be able
to use their limited resources more efficiently and address
environmental issues more effectively than they could if each Tribe
separately developed and maintained separate environmental programs.
Accordingly, Intertribal Consortia as defined in Sec. 35.502, will be
eligible to receive grants under the programs listed in Sec. 35.501.
For all grants except GAP grants, all members of an Intertribal
Consortium must be eligible to receive the grant and must authorize the
Consortium to apply for and receive the grant. This means, for example,
that for a Consortium to be eligible for a Clean Water Act section 106
grant, each member of the Consortium must establish that it is a
federally recognized Tribe and that it has met the requirement for
treatment in a manner similar to a State, because that is required for
individual Tribes seeking section 106 grants. If a grant authority does
not require Tribes to establish eligibility for treatment in a manner
similar to a State to receive a grant, then the authorizing members of
a Consortium need not satisfy that prerequisite.
For GAP grants, an Intertribal Consortium will be eligible if (1) a
majority of the Consortium's members meet the eligibility requirements
for the grant; (2) all members that meet the eligibility requirements
authorize the Consortium to apply for and receive the grant; and (3)
only the members that meet the eligibility requirements will benefit
directly from the grant project and the Consortium agrees to a grant
condition to that effect. This means that a Consortium may receive a
GAP grant even if the Consortium includes Tribal governments that are
not recognized as eligible for the special services provided by the
United States to Indians because of their status as Indians so long as
the Consortium meets the three requirements specified above. EPA
decided to impose somewhat less restrictive requirements on Intertribal
Consortia seeking GAP grants because the Indian Environmental General
Assistance Program Act of 1992, 42 U.S.C. 4368b (IEGAPA), explicitly
authorizes GAP grants to an ``Intertribal Consortium,'' which it
defines as ``a partnership of two or more Indian Tribal governments
authorized by the governing bodies of those Tribes to apply for and
receive assistance pursuant to this section.'' This definition may
reasonably be interpreted to include a Consortium comprised of a
majority of federally recognized Tribes and a few non-recognized Tribal
governments. Such a Consortium would be a partnership of federally
recognized Tribes, although it would not be a partnership consisting
exclusively of federally recognized Tribes. In effect, the recipient of
the GAP grant to such an Intertribal Consortium would be a subset of
the original Consortium consisting only of those individually eligible
Tribes. The Agency is adopting this approach to meet those very rare
circumstances where awarding a GAP grant to such a Consortium would be
consistent with the intent of the IEGAPA.
EPA believes this approach for making environmental program grants
available to Intertribal Consortia is consistent with President
Clinton's Executive Order 13084, which encourages agencies to adopt
``flexible policy approaches'' and to respect the principle of Indian
self-government and sovereignty.
Preferences for Indians, Indian organizations, and Indian-owned
economic enterprises. Section 450e(b) of the Indian Education,
Assistance, and Self Determination Act, January 4, 1975 (25 U.S.C. 450
et seq.), provides:
Any contract, subcontract, grant, or subgrant pursuant to this Act,
the Act of April 16, 1934 (48 Stat. 596), as amended (25 U.S.C. 452),
or any other Act authorizing federal contracts with or grants to Indian
organizations or for the benefit of Indians shall require to the extent
feasible--
(1) Preferences and opportunities for training and employment in
connection with the administration of such contracts or grants shall be
given to Indians; and
(2) Preference in the award of subcontracts and subgrants in
connection with the administration of such contracts or grants shall be
given to Indian organizations and to Indian-owned economic enterprises
as defined in section 3 of the Indian Financing Act of 1974 (88 Stat.
77) (25 U.S.C. 1452).
EPA determined that these preference requirements of the Indian
Self-Determination Act apply to the award of grants, contracts,
subcontracts and subgrants under the grant programs covered by this
subpart. In the proposed regulation, EPA asked for comments on
implementing this provision, but received none. Since issuing the
proposed rule, EPA has determined that the preference requirements of
the Indian Self-Determination Act should apply to all grants awarded to
Tribes by EPA because they are awarded to Tribes pursuant to statutes
authorizing grants to Indian organizations, which includes Tribes and
Intertribal Consortia, or for the benefit of Indians. Therefore, the
regulations governing the award of all EPA grants to Tribes at 40 CFR
part 31 (Uniform Administrative Requirements for Grants and Cooperative
Agreements to State and Local Governments) are amended in this rule to
reflect the preference requirements of the Indian Self-Determination
Act and no comparable provision is included in the final rule for 40
CFR part 35, subpart B. EPA is adding to 40 CFR part 31 a new
Sec. 31.38 which provides:
Any contract, subcontract, or subgrant awarded under an EPA grant
by an Indian Tribe or Indian Intertribal Consortium that meets the
definition and eligibility requirements at 40 CFR part 35, subpart B
shall require to the extent feasible--
(1) Preferences and opportunities for training and employment in
connection with the administration of such contracts or grants shall be
given to Indians, as defined in the Indian Self-Determination Act (25
U.S.C. Sec. 405b); and
(2) Preference in the award of subcontracts and subgrants in
connection with the administration of such contracts or grants shall be
given to Indian organizations and to Indian-owned economic enterprises
as defined in section 3 of the Indian Financing Act of 1974 (88 Stat.
77) (25 U.S.C. 1452).
In addition, the requirements for procurement under grants are
amended to include a cross reference to the new preference provision at
40 CFR 31.38. Specifically, 40 CFR 31.36(b)(1) is amended to provide:
Procurement Standards. (1) Grantees and subgrantees will use their
own procurement procedures which reflect applicable State and local
laws and regulations, provided that the procurement actions conform to
applicable federal law, the standards identified in this section, and,
if applicable, 40 CFR 31.38.
V. Performance Partnership Grants
Sections 35.530 through 35.538 contain the requirements that apply
only to PPGs to Tribes or Intertribal Consortia. In a PPG, the
recipient can combine funds from two or more environmental program
grants into a single grant under streamlined administrative
requirements. Before a Tribe or Intertribal Consortium can include
funds from an EPA environmental program in a PPG, it must meet the
requirements for that program with a few specified exceptions. For
example, if a program
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requires treatment in a manner similar to a State, the Tribe or Tribal
members of a Consortium must satisfy that requirement in order to
include that program's funds in a PPG. The exceptions are requirements
that restrict how a specific environmental program grant can be used
after award. These requirements are not appropriate to be carried over
to PPGs because after funds are awarded in a PPG, they may be used for
cross-media activities or strategies and do not need to be accounted
for in accordance with their original program sources. However, the
source of the funds is considered by the Regional Administrator in
negotiating a work plan with the applicant. See Secs. 35.507(a) and
35.535. Key features of the PPG rule are discussed below.
Funds and activities eligible for inclusion in a PPG. Funds for any
environmental program grant listed in Sec. 35.501 may be included in a
PPG if the funds for that grant were appropriated in the same specific
appropriation as the funds for PPGs. EPA will announce any changes in
its appropriation acts that affect the list of programs in Sec. 35.501.
Unlike the rule governing PPGs to States, Sec. 35.535 of this rule
allows Tribes and Intertribal Consortia to use PPG funds for any
environmental activity that is eligible under the environmental
programs listed in Sec. 35.501 (except EPA delegated, EPA approved, or
EPA authorized activities, which still require delegation, approval or
authorization), regardless of whether a Tribe applied for or was
selected for funding for that particular activity, provided that the
Regional Administrator consults with the appropriate NPMs. The NPM may
expressly waive or modify the consultation requirement in national
program guidance. For example, if EPA found that a Tribe was not
eligible for a Clean Air Act section 105 grant, but the Tribe wanted to
perform air program monitoring or inspections, the Tribe could pay for
those activities with PPG funds, provided that: (1) The Regional
Administrator consulted with the appropriate NPMs, including those NPMs
for the sources of the PPG funds (unless waived in national program
guidance) and (2) the activity was included in the approved PPG work
plan. The Tribe would perform these air activities using Tribal
authority. To implement an EPA delegated, approved, or authorized
program under a PPG, a Tribe would need the delegations, approvals, or
authorizations as required under Sec. 35.535(a). Given the wide variety
of environmental activities eligible under GAP (see Secs. 35.540-
35.548), this will allow Tribes, as determined by the Regional
Administrator, to use funds from other programs that are put into a PPG
for the same wide variety of activities that are eligible for funding
under GAP. Furthermore, this will allow Tribes to use GAP funds
included in a PPG, to carry out activities that are eligible for
funding under any of the other grant programs covered by this subpart
as long as the Tribe has any EPA delegation, approval, or authorization
required under Sec. 35.535(a).
Within the framework of EPA oversight established by Secs. 35.507,
35.514(a), 35.535 and national program guidance, EPA is providing
Tribes with flexibility to use PPG funds for a broad variety of
activities. EPA believes this approach is appropriate because Tribes
need to address a broad range of environmental issues, but do not have
the same access to diverse funding sources as States and, generally,
Tribes must compete annually for their funds while States do not. EPA
believes this approach will help achieve a key purpose of the PPG
program: to provide Tribes and Intertribal Consortia with the
flexibility to direct resources where they are most needed to address
environmental and public health priorities. EPA will retain sufficient
programmatic control because Sec. 35.535(b) requires the Regional
Administrator to consult with the appropriate NPMs before agreeing to
work plans that differ significantly from National Program Guidance.
For example, if a Tribe or Intertribal Consortium was selected for
funding in a competition based on its proposed work plan for that grant
and the Tribe or Consortium proposed a PPG work plan that would
significantly modify those proposed work plan activities, then the
Regional Administrator would have to consult with the NPM associated
with the funding source before approving the work plan (unless waived
in national program guidance). Accordingly, the Regional Administrator
will be responsible for ensuring that the Tribes and Intertribal
Consortia meet the basic requirements of programs which provide funds
for the PPG before the Tribes use funds for other important activities.
EPA intends to evaluate the flexibility provided under the rule
regarding the activities eligible for funding under a PPG. After the
third year of implementing the program, but before the end of the fifth
year, the Agency will evaluate the environmental benefits of this
flexibility as compared to the costs, which may include reduced
accountability for funds and outcomes. Based on that evaluation, the
Agency will determine whether to continue to allow Tribes to use PPG
funds to perform activities under programs for which they are not
eligible to receive a grant. If the Agency determines that a change in
the regulation is appropriate, it will revise the regulations
appropriately.
Administrative flexibility. A primary advantage of PPGs is the
administrative flexibility provided to all PPG recipients. A PPG
requires only a single application, work plan, and budget. Once funds
are awarded in a PPG, the Tribe or Intertribal Consortium can direct
the funds as needed to achieve work plan commitments and does not need
to account for funds in accordance with their original program sources.
However, EPA must be able to link the grant work plans to EPA's GPRA
goal and objective architecture. These features also make it possible
for Tribes to negotiate a work plan that includes cross-media or
innovative strategies for addressing environmental problems.
Cost share. The PPG cost share is the sum of the cost shares
required for all individual program grants included in the PPG in
accordance with 40 CFR 35.536(b) and (c) for each individual program
grant included in the PPG. EPA will not require Tribes and Intertribal
Consortia to provide a PPG cost share for funds from programs which do
not require cost shares, such as GAP. (Cost sharing requirements for
individual programs are found under Secs. 35.540 through 35.718.) For
funds from programs with a cost share requirement of five percent or
less under the provisions of Secs. 35.540 through 35.718, the PPG cost
share will be the same as the cost share for the individual programs,
as identified in Secs. 35.540 through 35.718. For funds from programs
with a required cost share greater than five percent, EPA will require
Tribes to provide a cost share of five percent; however, after the
first two years, the Regional Administrator will determine through an
objective assessment whether the Tribe or the members of an Intertribal
Consortium meet socio-economic indicators that demonstrate the ability
of the Tribe or the Intertribal Consortium to provide a cost share
greater than five percent. If the Regional Administrator determines
that the Tribe or members of the Intertribal Consortium meet such
indicators, then the Regional Administrator will increase the required
cost share up to a maximum of 10 percent. If the Regional Administrator
determines that the Tribe or the members of the Intertribal Consortium
do not meet such indicators, then the cost share will remain at five
percent.
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(The required cost share for the Tribal Water Pollution Control Grant
Program (Clean Water Act, section 106) is five percent; therefore, it
is not one of the grant programs under which the cost share could be
raised to 10 percent through the Regional Administrator assessment and
determination process.)
Further, the Regional Administrator may waive the required PPG cost
share at the request of the Tribe or Intertribal Consortium if the
Regional Administrator determines, based on an objective assessment of
socio-economic indicators, that fulfilling the cost share requirement
would impose undue hardship on the Tribe or members of the Intertribal
Consortium. EPA received several comments on the cost sharing
provisions of the proposed rule. The comments are discussed in Section
VII of this preamble.
In the preamble to the proposed rule, EPA invited suggestions for
the socio-economic indicators for approval of the lower cost share and
waiver of cost share, as well as suggestions for how the cost share for
Intertribal Consortia should be calculated. EPA did not receive any
recommendations for the socio-economic indicators.
VI. Indian Environmental General Assistance Program and Performance
Partnership Grants
An important and unique environmental program available only to
Tribes and Intertribal Consortia is the Indian Environmental General
Assistance Program (GAP) (40 CFR 35.540 et seq.) This program was
created to assist Indian Tribes in developing the capacity to manage
their own environmental protection programs. GAP offers the opportunity
for Tribes to develop integrated environmental programs, to develop
capacity to manage specific programs that can be delegated by EPA, and
to plan, develop, and establish a core program for environmental
protection. It also provides the opportunity for Tribes to define and
develop administrative and legal infrastructures, and to undertake
additional activities to plan, develop, and establish environmental
programs within a simplified administrative framework.
GAP funds can be used more flexibly than categorical environmental
program funds. EPA recognizes the Tribes' need for flexibility in using
limited resources available for protecting Tribal environments, but
believes that this need for flexibility must be balanced with the
Agency's goals of establishing a strong Tribal environmental presence
in Indian country and of diversifying financial resources available to
Tribes for the administration of comprehensive environmental programs.
GAP funds are primarily available for and critical to the development
of sustainable, integrated Tribal environmental programs. The long-term
goal of developing and maintaining an adequate level of funding for
Tribal environmental programs will be best served not by increasing the
number of activities that are funded by GAP, but rather by expanding
and diversifying the use of various categorical environmental programs
funds, in addition to the use of GAP funds.
When Congress authorized the PPG program, it allowed GAP funds to
be included in such a grant. However, to balance competing interests in
the use of GAP funds, EPA encourages Tribes and Intertribal Consortia
to continue to use GAP funds, at least in the first instance, for the
development of Tribal capacity to manage environmental programs and not
to use these funds for media-specific environmental activities. EPA
believes that the overriding value of GAP lies in its ability to assist
Tribes in the development of their environmental program capacity. This
original and primary purpose of GAP has not been fully realized since
some Tribes have not yet developed an environmental program capacity.
Including a GAP grant in a PPG should not result in a reduction of EPA
media-specific environmental program assistance available to Indian
Tribes and Tribal Consortia.
VII. Response to Comments
EPA received 16 letters commenting on the proposed rule. In
general, the comments supported the rule as written but suggested
several changes. Specifically:
1. Three commenters addressed EPA's intention to include
regulations for the Hazardous Waste and Underground Storage Tank
programs in the final rule. One commenter asked that the programs be
added to the rule immediately while two asked that the provisions for
these programs be made available for public comment first.
EPA decided to include the Hazardous Waste and Underground Storage
Tank Grant Programs in the final rule to provide Tribes with an
expedited opportunity to include funds from these programs in a PPG and
to allow Tribes to use PPGs for activities eligible for funding under
these grant programs even if they do not include funds from these
programs in a PPG (consistent with the limitations at Sec. 35.535). EPA
believes that giving Tribes the option, as soon as possible, of
including Hazardous Waste and Underground Storage Tanks grants in a PPG
provides Tribes with greater flexibility in building a partnership for
environmental protection than not including the programs in subpart B
at this time. Furthermore, as part of its regulation review process EPA
provided copies of the draft final rule to many Tribal representatives
including those who serve on the EPA Tribal Operations Committee (TOC),
the National Tribal Environmental Council (NTEC) and the Tribal
Association of Solid Waste and Emergency Response (TASWER). Finally, as
noted above, comments on this rule, although final, may be submitted to
the person identified above in the For Further Information section
above. Although EPA does not anticipate doing so, EPA could amend this
rule in response to comments without having to go through a subsequent
notice and comment rule making. This is because rules regarding the
award and administration of grants are explicitly exempt from the
notice and comment requirements of the Administrative Procedure Act APA
(5 U.S.C. 553(a)(1)).
2. One commenter noted that Section VII of the Preamble included a
reference to ``State'' work plans and it should refer to Tribal work
plans.
EPA apologizes for any confusion this mistake may have caused. EPA
will substitute the words Tribe, or Tribal for State in this paragraph.
3. Two commenters suggested the term ``Tribal/EPA Environmental
Agreement'' (TEA) should not be defined in the rule because TEAs are
not intended to bind Tribes to any particular substantive requirements.
The commenters stated that the definition would tend to increase rather
than streamline requirements.
EPA agrees that the decision whether to negotiate a TEA is
discretionary. Nevertheless, EPA believes it is appropriate to include
the definition since a TEA may be used as a work plan under
Sec. 35.507(c). EPA is today revising the definition of Tribal/EPA
Environmental Agreement that was included in the proposed rule to be
more consistent with Administrator Browner's 1994 Action Memorandum for
the EPA Indian Program and the American Indian Environmental Office's
template and guidance on TEAs which views these as dynamic rather than
static documents. To the extent a TEA is used as the basis for a PPG
work plan, the version used would be binding for the purposes of the
agreement. For an explanation of EPA's work with Tribes to develop
TEAs, please see Administrator Browner's July 12, 1994, Tribal
Operations Action Memorandum
[[Page 3787]]
and American Indian Environmental Office Director's July 1995 TEA
Template. Both of these documents are available at: http://www.epa.gov/
indian, or contact Bob Smith at EPA's American Indian Environmental
Office at (202) 260-8202.
Including an appropriate definition for a TEA in the regulation
does not impose any requirement for a Tribe to have a TEA, or add new
requirements for the content of a TEA. Further, there is no requirement
that a TEA be developed. The intention of Sec. 35.507(c) is to provide
added flexibility for EPA and a Tribe to agree to use a TEA or a
portion of the TEA as the work plan or part of the work plan for an
environmental program grant: (1) If they choose to do so; and (2) if
the portion of the TEA that is to serve as the grant work plan clearly
identifies and distinguishes work plan activities from other portions
of the TEA and meets the work plan requirements in Sec. 35.507(b). EPA
reasoned that, in some cases, the development of a work plan could
actually be made easier if parts of it had already been formulated when
the Tribe developed its TEA.
4. Three commenters expressed concern about Sec. 35.504 which will
allow Intertribal Consortia to receive grants under all of the grant
programs covered by this rule. The commenters maintain that EPA should
not award grants to Consortia because it might jeopardize the autonomy
of Tribes, conflict with an individual Tribe's proposals, or result in
the duplication of activities or performance of activities that are not
supported by all members of the Intertribal Consortium.
EPA understands these concerns and has modified the final rule to
ensure that such consequences do not result from the award of grants to
Intertribal Consortia. Section 35.502 defines Intertribal Consortium as
``a partnership between two or more Tribes that is authorized by the
governing bodies of those Tribes to apply for and receive assistance
under one or more of the programs listed in Sec. 35.501,'' and
Sec. 35.504(a) provides that ``an Intertribal Consortium is eligible to
receive a grant under the authorities listed in Sec. 35.501 only if the
Consortium demonstrates that all members of the Consortium * * *
authorize the Consortium to apply for and receive assistance.'' The
definition of Intertribal Consortium in the proposed rule also provided
that ``[a] Consortium must have adequate documentation of the existence
of the partnership and the authorization to apply for and receive
assistance.'' Thus, an Intertribal Consortium must be able to provide
some documentary proof that a Tribe has authorized it to apply for and
receive a specific grant on the Tribe's behalf.
To clarify the eligibility and documentation requirements, EPA made
a number of changes in the final rule. First, EPA moved the
documentation requirements from the definition of Intertribal
Consortium to the section on eligibility requirements. In addition, EPA
clarified that the documentation must show that all members of the
Consortium (or all eligible members of the Consortium in the case of a
GAP grant) authorize the Consortium to apply for and receive the grant
for which the Intertribal Consortium has applied. The final rule also
makes it clear that Intertribal Consortia must both ``have'' this
documentation and submit it to EPA in order to be eligible for a grant
award as a Consortium. The documentation of the member Tribes'
authorization of the Consortium should specify the period of time for
which the authorization is effective without further action by the
authorizing Tribe and whether the authorization applies to particular
grants or all grants for which the Consortium may apply. Members of a
Consortium may impose other requirements on their Consortium to ensure
that the Consortium cannot act on their behalf without their
authorization. EPA believes that these provisions, as modified in the
final rule, will ensure that grants to Consortia do not jeopardize the
autonomy of a Tribe, conflict with a Tribe's own proposals, or involve
activities not supported by all Tribes that are members of the
Consortia. In addition, EPA's review of work plans will further reduce
the possibility that Tribes and Intertribal Consortia carry out
duplicative activities.
5. Three comments concerned the provisions related to changes in
assistance agreements after award. One stated EPA should reduce the
number of small changes required, especially in the GAP program with
respect to the grant budget.
EPA believes this regulation will eliminate the need for frequent
budget revisions for such small changes as unanticipated fluctuations
in travel, lodging, or office equipment prices. Those changes will not
have to be reported or require prior approval unless the Regional
Administrator determines otherwise in specific cases. Section 35.514(c)
states that recipients do not need to obtain approval for changes in
budgets unless the Regional Administrator determines additional
approval requirements should be imposed on a specific recipient for a
specified period of time. Amendments to environmental program grant
amounts and extensions of the budget period still, however, require
approval from the Regional Administrator under Sec. 35.514(b).
Two commenters suggested that EPA define ``significant'' as used in
Sec. 35.514(a) and explain the circumstances under which the Regional
Administrator might determine that additional approval requirements
should be imposed in Sec. 35.514(c).
Section 35.514 requires recipients to obtain the Regional
Administrator's prior written approval before making significant
changes to the grant work plan or budget after the work plan has been
negotiated. Under the Uniform Administrative Regulations for Grant and
Cooperative Agreements to State and Local Governments (40 CFR part 31),
Tribes and Intertribal Consortia would also be required to get EPA's
prior written approval for ``any revision of the scope or objectives of
the project (regardless of whether there is an associated budget
revision requiring prior approval)'' (40 CFR 31.30(d)(1)). EPA believes
that for the continuing environmental program grants covered by this
rule, prior written approval for changes should be necessary only for
significant changes, and that the grantee, with assistance from the EPA
project officer, if necessary, is in the best position to distinguish
significant from insignificant changes in the context of its particular
work plan. Further, defining the term would reduce management
discretion and flexibility which we believe are essential to the
regulation. Accordingly, EPA has decided not to define ``significant''.
If there is any question as to whether a post-award change in the work
plan is significant, the grantee is encouraged to consult with the EPA
project officer either during work plan negotiations or before making
the change.
These commenters also asked EPA to explain the circumstances under
which the Regional Administrator might determine that additional
approval requirements should be imposed in Sec. 35.514(c).
Section 35.514(c) provides that no approval is required for changes
other than those changes described in Sec. 35.514(a) and (b), unless
the Regional Administrator determines that approval requirements should
be imposed on a specific recipient for a specific period of time. Thus,
Sec. 35.514(c) eliminates requirements for that category of changes,
but gives the Regional Administrator the authority to impose them on a
case-by-case basis. There are a variety of circumstances which could
lead EPA to impose such requirements.
[[Page 3788]]
For example, the Regional Administrator might determine that additional
approval requirements should be imposed when it is determined the
additional requirements are necessary to ensure proper management of
EPA grants because the recipient has had a history of poor performance
and corrective actions directed by audits.
6. Two comments asked that EPA define ``cumulative effectiveness''
and ``sufficient progress'' as used in Sec. 35.515.
Section 35.515 describes the process developed by the Regional
Administrator and the Tribe or Intertribal Consortium for jointly
evaluating a recipient's performance under the grant in accordance with
Sec. 35.515(a). Paragraph (b) of Sec. 35.515 provides, in pertinent
part, that ``the evaluation process must provide for * * * a discussion
of the cumulative effectiveness of the work performed under all work
plan components''. Paragraph (c) states that ``if the joint evaluation
reveals that the recipient has not made sufficient progress under the
work plan, the Regional Administrator and the recipient will negotiate
a resolution that addresses the issues''. The phrase ``cumulative
effectiveness'' in the context of Sec. 35.515(b) refers to how
effectively the recipient carried out the work under all of the work
plan components, taken together. The phrase ``sufficient progress'' in
the context of Sec. 35.515(c) is a jointly agreed upon assessment of
accomplishments as measured against the work plan commitments.
EPA believes that a regulatory definition of these terms would
significantly restrict the flexibility afforded both Regional
Administrators and applicants under Sec. 35.515, particularly since the
regulation contemplates a jointly developed process for jointly
evaluating and reporting progress and accomplishments under the work
plan.
7. Two commenters state the Administrator should not be able to use
a guidance document to delete a program from coverage under a PPG.
Section 35.533 provides that the Administrator may in guidance or
in regulation describe subsequent additions, deletions, or changes to
the list of environmental programs eligible for inclusion in PPGs. EPA
grant guidance may include rules (as ``rule'' is defined by the
Administrative Procedure Act, which explicitly exempts grant related
rules from notice and comment rule making requirements). There may be
changes in the list of environmental programs eligible for inclusion in
a PPG as a result of EPA's annual appropriation act and Tribes will
need to know about those changes as soon as possible since they will
take effect at the start of the fiscal year. Thus, EPA believes it is
important to be able to inform grantees of such changes quickly in a
guidance document rather than in a rule. Any changes in the list of
environmental programs will be published in the Federal Register.
8. One commenter supported the cost sharing requirements included
in the proposed regulation while several stated that EPA should reduce
the cost share required under PPGs to zero (see Sec. 35.536).
The formula will reduce the cost share from current levels for
Tribes that move grants with matches greater than five percent into a
PPG. EPA carefully considered the question of further reductions in the
cost share for Tribal recipients and concluded that some investment by
recipients is generally appropriate to expand the ability of EPA and
its partners to protect public health and the environment from
pollution. Section 35.536(d) also authorizes the Regional Administrator
to waive the cost share requirement at any time upon request by the
Tribe or Intertribal Consortium, if the Regional Administrator
determines the cost share would impose undue hardship. EPA notes that
PPGs and many of the Agency's grant programs allow for recipients to
meet the cost share requirements with in-kind services (see 40 CFR
31.24).
9. One commenter expressed concern that PPGs do not work well for
Tribes because Tribal grants are not awarded at the same time in a
fiscal year, causing the Tribes and EPA to continually update the PPG.
The commenter also expressed concern that certain grants are not
eligible for the PPG, including solid waste and emergency response
grants.
Finally, the commenter stated that: ``It seems as though there is
a[n] undercurrent of mistrust by Regional program offices, because of
the newness of PPG's to Tribes, that fuels the conception that Tribes
are not capable of this type of grant management.'' The commenter
expressed concern that EPA is scrutinizing the grants management
practices of Tribes more than those of States.
The concern raised by the commenter about the timing of grant
awards is valid. EPA hopes that the opportunity to streamline
administrative procedures in a PPG will provide an incentive for closer
alignment of funding cycles in the Agency's grant programs.
Under the legislation authorizing the PPG program (Omnibus
Consolidated Rescissions and Appropriations Act of 1996, Pub. L. 104-
134, 110 Stat. 1321, 1321-299 (1996); Departments of Veterans Affairs
and Housing and Urban Development, and Independent Agencies
Appropriations Act, 1998, Pub. L. 105-65, 111 Stat. 1344, 1373 (1997)),
EPA has made as many environmental program grants as possible eligible
for inclusion in a PPG. With this final rule, funds from all 17
environmental program grants available to Tribes in the Agency's
earmark for multi-media or single media pollution prevention, control
and abatement and related activities, which are in the ``State and
Tribal Assistance Grant'' (STAG) appropriation account, may be included
in PPGs. Only funds included in that particular earmark within the STAG
account are available for inclusion in PPGs because the statutory
authority to award a PPG is limited to those funds. Funds from other
EPA appropriations, such as those for Superfund emergency response
grants are not included in the earmark. The programs that are funded
under this regulation are those listed in Sec. 35.501. EPA does not
currently have a grant program for continuing solid waste programs.
Under this rule, however, Tribes may use GAP funds to develop and
implement solid waste programs (see Sec. 35.545).
EPA has traditionally received funding for its grant programs on a
media-specific basis and reported to Congress on program
accomplishments similarly. The concerns raised by the commenter
regarding ``additional scrutiny'' and ``an undercurrent of mistrust''
may reflect the challenge (and growing pains) associated with adopting
a new approach that allows funds appropriated by Congress on a media-
specific basis to be merged into a PPG. The fact that, due to funding
limitations, many EPA programs award grants to Tribes on a competitive
basis, rather than through an allotment process, may compound the
difficulty of moving from individual Tribal grants to PPGs.
EPA believes its requirements for State and Tribal grants
administration are similar under subparts A and B. However, EPA has
recognized that there are unique features to Tribal grant programs
which make implementation of a PPG more challenging. For example, in
addition to the competition for funds described above, an individual
Tribe will generally have access to fewer EPA grants on an annual basis
than EPA's State partners. Therefore, EPA has provided the opportunity
for more flexibility in the use of Tribal grants
[[Page 3789]]
funds. In particular, EPA is allowing Tribes and the Regional
Administrator to develop a PPG work plan that may include activities
that are eligible for funding under any of the PPG-eligible grant
programs (within certain limitations), even if funds from certain grant
programs were not included in the PPG. In contrast, EPA is requiring
States to receive funding from a grant program in order to use PPG
funds for activities under that program.
10. One commenter opposed award of GAP grants to Intertribal
Consortia because GAP grants are ``awarded to build capacity to
administer environmental programs on Indian lands by providing general
assistance to plan, develop and establish the capability to implement
environmental programs in Indian Country.'' The commenter stated that
such capacity building should be undertaken by individual Tribes, not
by Consortia.
EPA disagrees. Because we have defined an Intertribal Consortium as
a partnership between two or more Tribes (defined in this rule
generally as Indian Tribal governments), GAP grants to Intertribal
Consortia will assist those Tribes that are members of the Consortium
to build capacity to administer environmental programs. Furthermore,
the Indian Environmental General Assistance Program Act (42 U.S.C.
4368b) explicitly authorizes EPA to award grants to Intertribal
Consortia. EPA prefers not to restrict the eligible recipients of GAP
grants further than the statutory authority for GAP grants. Therefore,
EPA has not changed the final rule in response to this comment.
11. Two commenters asked for clarification of what constituted
``otherwise available funds'' which would prevent funding under the
Clean Air Act section 105 referenced in Sec. 35.576(d). Section
35.576(d) provides that ``[t]he Regional Administrator will not award
section 105 funds unless the applicant provides assurance that the
grant will not supplant non-federal funds that would otherwise be
available for maintaining the section 105 program.''
EPA intended Sec. 35.576(d) to refer only to Tribes and Intertribal
Consortia that are eligible for financial assistance under
Sec. 35.573(b) (for Tribes that have not established eligibility for
treatment in a manner similar to a State) and it is a corollary to the
maintenance of effort requirement applicable to such Tribes. It does
not apply to Tribes that are eligible for a section 105 grant under
Sec. 35.573(a) (for Tribes that have established treatment as a State).
Non-federal funds that would otherwise be available ``for maintaining
the section 105 program'' would include Tribal funds in an amount equal
to that which the Tribe expended on the Air 105 program in the previous
year. To clarify that this section applies only to Tribes that
establish eligibility under Sec. 35.573(b), EPA added the phrase ``For
Tribes and Intertribal Consortia that are eligible for financial
assistance under Sec. 35.573(b) of this subpart'' to the beginning of
this paragraph. We also changed the numbering of the section as
follows: Section 35.576(b) became Sec. 35.576(a)(1); Sec. 35.576(c)
became Sec. 35.576(a)(2) and Sec. 35.576(d) became Sec. 35.576(b).
12. Two commenters requested that the limit on administrative costs
in the Nonpoint Source Program (Sec. 35.638(c)) be clarified. They
asked, does the 10 percent limit apply to Tribal general administrative
costs or to general and administrative costs associated with the
program? If the former, they ask that a phrase, ``unless the applicant
has an indirect cost rate agreement,'' be added at the end of the
sentence containing the limitation. If the latter, they express concern
that this limitation is so severe as to result in an inability of the
Tribes to administer the program at all.
EPA does not have the discretion to remove the limitation at
Sec. 35.638(c) from the award of grants under section 319 of the Clean
Water Act because it is required by law. This limitation is a
restatement of the statutory limitation established by section
319(h)(12) which provides that ``administrative costs * * * charged
against activities and programs carried out with a grant under this
subsection shall not exceed 10 percent of the amount of the grant in
such year, except that the costs of implementing enforcement and
regulatory activities, education, training, technical assistance,
demonstration projects, and technology transfer programs shall not be
subject to this limitation.'' It applies to grants awarded under
section 319 to both States and Tribes. The limitation does not apply to
Tribal general administrative costs because general administrative
costs that are not associated with a grant program cannot be charged to
a grant. Only administrative costs, including allowable indirect costs,
that are reasonable and necessary to carry out a grant program or
project can be charged to that particular grant. However, it should be
noted that section 319(h)(12) specifically exempts the costs of
implementing enforcement and regulatory activities, education,
training, technical assistance, demonstration projects, and technology
transfer programs. The experience of States, Territories, and Tribes
that have received section 319 grants is that this limitation, defined
as it is in the statute, has not posed any significant obstacle to the
use of section 319 funds.
13. Two comments strongly supported the increase in funding to be
available to Tribes and Intertribal Consortia for drinking water
programs (Sec. 35.673). The commenters agreed with the recent focus on
achieving safe and clean drinking water throughout Indian Country and
appreciate the recognition of capacity-building needs in respect to
Tribal water systems. One commenter asked that the increase of up to
seven percent in the Public Water System Supervision (PWSS) program
Tribal reserve under Sec. 35.673 be restated to provide for a fixed
amount of seven percent. Two other comments strongly opposed the
increase. They fear that increasing the Tribal reserve will cause a
decrease in PWSS grants available to primacy States. In addition, they
argue there should not be an increase in the Tribal reserve since State
programs are currently underfunded.
EPA understands the concerns about the increase in the PWSS Tribal
Reserve. However, we specifically asked Congress for additional PWSS
funds to help Tribes build their capabilities in the PWSS program and
to help Tribes meet new requirements that are needed to obtain Drinking
Water Infrastructure Tribal Set-Aside grants. These new requirements,
such as operator certification and capacity development, are necessary
to successfully run a PWSS program as well as to obtain grants. Since
Fiscal Year 1998 EPA has received an additional $3,780,500 in the PWSS
Program for these purposes. For the past two years, EPA has deviated
from the three percent regulatory limit on the amount of PWSS funds
reserved for Tribes. We are increasing the regulatory limit on PWSS
funds reserved for Tribes because Tribes need these funds to comply
with new requirements imposed by the Safe Drinking Water Act Amendments
of 1996.
Tribes do not have the same opportunity as States have to use a
portion of their infrastructure funding to meet these new requirements.
Thus far, States have set-aside more than $91 million from their
Drinking Water State Revolving Fund capitalization grants for
activities supporting drinking water programs (including PWSS, capacity
development and operator certification programs) and are expected to
set-aside more funds for these purposes in the future. The only
additional funds that have been made available for Tribes is the
$3,780,500 million that has been added to the PWSS grants.
[[Page 3790]]
The increase in the funds reserved for Tribes is not intended to
take funds away from States, but rather to continue to fund the Indian
programs at the current level without the need to deviate from the
regulations. EPA may not necessarily reserve seven percent of the
annual appropriation for PWSS grants; the regulation only provides that
``up to'' seven percent of the PWSS funds shall be reserved for Tribes.
This provides EPA flexibility to adjust the amount of the Tribal
reserve upward or downward. Thus, for example, if Congress reduces the
appropriation for PWSS grants in the future, then EPA may decide to
reduce the Tribal reserve to balance it with the need for funding for
the States. EPA will work with stakeholders, including States and
Tribes, in establishing an equitable allocation.
14. Two commenters asked that the Agency make the regulation
effective for Fiscal Years 2000 and 2001 and not retroactively.
EPA agrees. The regulation will apply to new grants awarded 30 days
after the regulation is published. EPA will not apply this rule to
grants that have already been awarded. A Tribe may, however, close out
an existing grant and carry over funding to a new grant awarded under
this subpart after the regulation is published.
15. One commenter expressed concern that the definition of ``Indian
country'' in subpart B may limit the use of certain grant funds that
could otherwise be available to address pollution threats to Usual and
Accustomed Areas (areas where certain treaty-reserved fishing rights
are exercised) and in ceded lands.
To avoid the appearance of unnecessarily limiting its grant
authorities, EPA has reviewed the regulations and removed use of the
term ``Indian country'' in four provisions: Sec. 35.516 (Direct
Implementation); Sec. 35.540 (Purpose of the Indian Environmental
General Assistance Program); Sec. 35.545(b) (Eligible Activities); and
Sec. 35.570 (Air Pollution Control Grants). The change to Sec. 35.516
makes this provision consistent with parallel language in the State
rule. The changes to Secs. 35.540 and 35.545(b) are consistent with the
Indian Environmental General Assistance Program Act 42 U.S.C. 4368b.
The change to Sec. 35.570 is consistent with Clean Air Act provisions
governing use of these grant funds.
16. One commenter stated that the boundaries of many Tribes are
constantly being defined and redefined, and wanted to know whether the
PPG is sufficiently flexible to accommodate these changes.
To the extent a Tribe or Intertribal Consortium must identify
particular land areas in order to be eligible for a grant (either a
single media grant or a PPG), and it wants to perform work in an area
not identified in the original application, the Tribe or Intertribal
Consortium will need to demonstrate that it continues to meet the
requirements for receiving grant.
VIII. Other Changes in the Proposed Rule
EPA made a several changes to the proposed rule to clarify certain
provisions even though the provisions were not the subject of comments.
1. There is no substantive difference between the definition of
Tribe in the GAP provisions of the proposed rule (Sec. 35.542) and the
definition of Tribe at 35.502 which applies to subpart B generally
(``Definition of terms''). Section 35.542 of the proposed rule defined
``Tribe'' as ``[a]ny Indian Tribe, band, nation, or other organized
group or community including any Alaska Native village or regional or
village corporation (as defined in, or established pursuant to, the
Alaska Native Claims Settlement Act (43 U.S.C. 1601, et seq.)), which
is recognized as eligible for the special services provided by the
United States to Indians because of their status as Indians.'' 64 FR
40084, 40097 (1999). This definition was in turn based on the
definition of ``Indian Tribal government'' in the Indian Environmental
General Assistance Program Act (IEGAPA), which authorizes GAP grants.
42 U.S.C. Sec. 4368b(c)(1).
The definition of Tribe in Sec. 35.502 of the proposed and final
rules provided that ``Except as otherwise defined in statute or this
subpart, Indian Tribal Government (Tribe) means: any Indian Tribe,
band, nation, or other organized group or community, including any
Alaska Native village, which is recognized as eligible by the United
States Department of the Interior for the special services provided by
the United States to Indians because of their status as Indians.''
The inclusion of Alaska Native regional or village corporations in
the definition of Indian Tribal government in IEGAPA and the proposed
rule has created some confusion because regional and village
corporations are not governments, and they are not recognized as
eligible for the special services provided by the United States to
Indians because of their status as Indians. Since Alaska Native
regional and village corporations are not federally recognized
governments, they are not eligible for GAP grants.
In the proposed rule, the only difference between the definitions
of Tribe in Secs. 35.542 and 35.502 was the inclusion of Alaska native
regional and village corporations in Sec. 35.542. However, as discussed
above, there is no substantive difference between the definitions
because no Alaska native regional and village corporation is in fact
eligible for a GAP grant as a ``Tribe''. As there is no need for a GAP-
specific definition of Tribe, we have omitted the definition of Tribe
for GAP grants at Sec. 35.542, and the general definition at
Sec. 35.502 will apply instead.
Although Alaska Native regional and village corporations are not
eligible for GAP grants, an Alaska Tribe receiving a GAP grant may
award a subcontract or subgrant to a village or regional corporation
(just as they could to any other organization), in accordance with
EPA's regulations governing subcontracts and subgrants.
2. The regulation uses the term ``Regional Administrator''
throughout. However, grants subject to these provisions may also be
approved and awarded by officials in EPA Heaquarters from time to time.
Accordingly, the final rule has been modified by adding Sec. 35.501(c)
to clarify that this subpart applies and the phrase ``Regional
Administrator'' means ``Assistant Administrator in the case of grants
awarded from EPA headquarters.
3. We revised Sec. 35.576 to make it clear that while applications
for Section 105 Air Pollution Grants must indicate recipients will meet
the Maintenance of Effort (MOE) provision of the program
(Secs. 35.576(a)), recipients' actual expenditures must actually meet
the MOE level. We have added section Sec. 35.576(a)(2) to make clear
the Regional Administrator must take action to recover the grant funds,
if expenditures do not meet the required level.
4. We revised Sec. 35.708(h) to make clear that Indoor Radon
program grant funds under section 306 of TSCA may be used to cover the
costs of Tribal and Intertribal Consortium proficiency rating programs,
but not a federal one.
5. After publishing the proposed rule, EPA reevaluated the
eligibility requirements for Intertribal Consortia seeking GAP grants
(section 35.504). That provision is intended to allow a GAP grant to a
Consortium that includes a majority of recognized and a minority of
non-recognized Tribes (it was not intended to allow a GAP grant to a
Consortium that includes non-Tribal organizations and businesses).
While EPA reaffirms its determination to award GAP grants to
Intertribal
[[Page 3791]]
Consortia made up of a majority of federally recognized Tribes and a
minority of non-federally recognized Tribes, EPA has modified the
eligibility requirements for Intertribal Consortia seeking GAP grants
in order to further ensure that only those members of an Intertribal
Consortium that are federally recognized Tribes directly benefit from
the grant.
6. The Clean Air Act prohibits the use of revenue collected under a
Title V operating permit program to meet the cost share requirements of
an air pollution program under section 105 of the Clean Air Act. We
added a new paragraph (c) to Sec. 35.575 to make this clear.
IX. Implementing GPRA
EPA has developed an integrated approach to implement GPRA, the
Chief Financial Officers Act (CFOA), and the Federal Financial
Management Improvement Act of 1996 (FFMIA). These laws provide EPA with
a framework to demonstrate to Congress and the taxpayers the costs to
the federal government of EPA's program accomplishments or outcomes.
Tribes and Intertribal Consortia, by virtue of authorized or delegated
program authorities and as recipients of EPA grant funds, play an
integral part in achieving those goals and objectives. Thus EPA's
reports of Agency resources associated with results-based outcomes will
incorporate--at the GPRA goal, objective, and subobjective level--
expenditures incurred in the form of payments to the Tribes under
grants and cooperative agreements. In order to comply with the
Paperwork Reduction Act and the federal government's general grant
regulations, EPA also has a responsibility to minimize additional
administrative reporting requirements and costs borne by the Tribes. In
addition, under current regulations EPA generally may not impose
accounting requirements on Tribes beyond those currently required by 40
CFR part 31.
EPA, therefore, will use the budget information that Tribes and
Intertribal Consortia provide in grant applications as a basis for
linking the Agency's actual expenditures with EPA's results-based
accomplishments or outcomes. EPA will be able to rely on Tribal budget
information sufficiently to determine the costs of EPA's results-based
outcomes according to the requirements of this rule:
(1) Tribes and Intertribal Consortia provide the program budget
information required as part of the application (see
Sec. 35.507(b)(2)(ii));
(2) EPA and the recipients explicitly define work plan goals,
objectives, outcomes, and outputs, as well as the program flexibility
contained in the work plan (see Sec. 35.507(b)(2)(i)); and
(3) Recipients report back on work plan accomplishments (see
Sec. 35.515).
The rule will ensure these three requirements are met.
Additionally, in accordance with Sec. 35.514(a), recipients may make
significant changes to the work plan commitments only after obtaining
the Regional Administrator's prior written approval. The regional
office, in consultation with the recipient, will document these
revisions including budgeted amounts associated with the revisions. If
necessary, the EPA funding office will make adjustments to original
budget linking work plan components to EPA's goal and objective
architecture. Once these requirements are met, they provide a
reasonable basis for associating the costs of its grants with the
Agency's results-based outcomes.
EPA in consultation with recipients, is responsible for cross-
walking the Tribal budget information (grant application and work plan
data) into the GPRA goal, objective, and subobjective architecture. If
a grant is subsequently amended to reflect significant adjustments to
work plan commitments, the region will consult with the Tribal
government to develop an estimate of the budget associated with the
revision so that it can be reflected in regional office GPRA reporting.
Cross-walk information is developed by EPA during the work plan/PPA
negotiations process with the Tribe or Intertribal Consotium.
X. Program Specific Provisions
Requirements applicable to each environmental grant program, such
as the requirements regarding eligibility and cost share, are located
in 40 CFR 35.540 through 35.718.
Programs not specifically available to Tribes. Sections 28 and 306
of the Toxic Substances Control Act (TSCA) and section 6605 of the
Pollution Prevention Act (PPA) provide explicit authority for grants to
States, but are silent regarding grants to Tribes. This rule reflects
EPA's determination that those statutes may be interpreted to also
authorize grants to Tribes for radon abatement (TSCA section 306) and
toxic substances compliance monitoring programs (TSCA sections 28), and
reaffirms EPA's determination that Tribes are eligible for Pollution
Prevention Grants under section 6605 of the PPA (see, e.g., 56 FR 11553
(1991)).
Previously, EPA determined that it has the authority to approve
Tribal lead-based paint abatement certification and training programs
and make grants to Tribes under section 404(g) of TSCA for the
development and implementation of such programs even though TSCA makes
no mention of Tribes. 61 FR 45778, 45805-808 (1996). The Agency
reasoned that its interpretation of TSCA is governed by the principles
of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S.
837 (1984) and that because Congress has not explicitly stated its
intent in adopting the statutory provision, the Agency could adopt an
interpretation which in its expert judgment is reasonable in light of
the goals and purposes of the statute. EPA opined further that since
TSCA did not define a role for Tribes, there was an ambiguity in
Congressional intent and therefore, the Agency's interpretation of TSCA
to allow Tribes to apply for program authorization was permissible
under Chevron. EPA reasoned further that this interpretation is
consistent with Supreme Court precedent holding that limitations on
Tribal sovereignty must be ``unmistakably clear,'' Montana v. Blackfeet
Indian Tribe, 471 U.S. 759 (1985), and that statutes are to be
construed liberally in favor of the Indians, with ambiguous provisions
interpreted for their benefit. County of Yakima v. Yakima Indian
Nation, 502 U.S. 251, 268 (1992). Finally, EPA noted that allowing
Tribes to apply for program authorization is consistent with the
general principles of federal Indian law ``encouraging Tribal
independence,'' Ramah Navaho Sch. Bd. v. Bureau of Revenue, 458 U.S.
832, 846 (1985), and the Agency's Indian policy which states that
environmental programs in Indian country will be implemented to the
maximum extent possible by Tribal governments. In light of these
principles, EPA reasoned that Tribes are also eligible for grants to
develop and implement lead-based paint certification and training
programs under section 404(g) of TSCA.
Consistent with the reasoning that warranted EPA's determination
with respect to Tribal lead program approval and grant authority, EPA
interprets sections 28 and 306 of TSCA and section 6605 of PPA to
authorize grants to Tribes as well as States, even though there is no
program approval or authorization associated with the grant programs
for radon abatement, toxics substance compliance monitoring, or
pollution prevention incentives. While Congress did not expressly
provide a role for Tribes in either TSCA or PPA, both statutes were
clearly intended to have comprehensive, nationwide coverage--including
the provisions regarding financial assistance for these programs. EPA
does not believe that
[[Page 3792]]
Congress intended the Agency to provide grants exclusively to States
and thereby leave Tribal lands without the benefit of grant assistance
for these programs, since the problems and goals they address--toxic
substances, radon abatement and pollution prevention--are relevant
throughout the nation in both State and Tribal areas. Therefore, EPA
has determined that it is appropriate to provide grants to Tribes for
Radon Abatement programs under section 306 of TSCA, Toxics Substances
Compliance Monitoring programs under section 28 of TSCA, and Pollution
Prevention Grant programs under section 6605 of PPA.
In order to be eligible for a grant under TSCA section 28, TSCA
section 306, or PPA section 6605, a Tribe or each member of an
Intertribal Consortium must establish eligibility for treatment in a
manner similar to a State by demonstrating that it:
(1) Is recognized by the Secretary of the Interior;
(2) Has an existing government exercising substantial governmental
duties and powers;
(3) Has adequate authority to carry out the grant activities; and,
(4) Is reasonably expected to be capable, in the Regional
Administrator's judgment, of administering the grant program.
If the Administrator has previously determined that a Tribe has met
the prerequisites in paragraphs (1) and (2) for another EPA program,
the Tribe need provide only that information unique to the particular
program required by paragraphs (3) and (4).
Public water system supervision Tribal reserve. Until now, EPA's
regulation (40 CFR 35.115(g)) has provided that EPA annually reserve up
to three percent of each year's Public Water System Supervision (PWSS)
funds for use on Indian lands. The Agency is increasing the limit to
allow a reserve of up to seven percent. This increase will provide
needed funds for the Tribal PWSS program without affecting States'
current funding. (See also the response to comments on this issue.)
The Tribal reserve is used for two purposes: to allow EPA to
directly implement the PWSS program on Tribal lands; and to assist
Tribes with developing PWSS primacy programs. The three percent
ceiling, established in 1988, was EPA's estimate of the amount that
would be needed to achieve both of these purposes. Over the past 10
years, we have realized that three percent is not adequate to achieve
both purposes. To date, only a small number of Tribes have taken steps
toward PWSS primacy. We believe that there are more Tribes which may be
interested in the program but have not yet voiced that interest because
they do not have the capacity to develop an adequate program. We also
believe more Tribes would take interest in the program if sufficient
funds were available.
In addition, the current Tribal reserve is insufficient to cover
basic direct implementation needs. Tribal systems have a high number of
monitoring/reporting and maximum contaminant level violations. These
same systems will need to abide by upcoming drinking water regulations
and will be asked to partake in several new initiatives outlined in the
revised SDWA, including source water protection, capacity development,
and operator certification. Although Tribes are not required to apply
for PWSS primacy, we believe that EPA, as the primary enforcement
authority of non-primacy Tribal systems, should address these
initiatives on Tribal lands. Additional Tribal funding can help EPA and
Tribes respond to Tribal safe drinking water needs.
EPA requested Congress to provide for funding in excess of the
amount necessary for the traditional three percent reserve in Fiscal
Year 1998 and succeeding years to assist Tribes in developing capacity
and maintaining their own PWSS programs, and to provide additional
support to the Tribal PWSS Direct Implementation program. In Fiscal
Years 1998, 1999, and 2000, EPA received an additional $3,780,500 for
these purposes. In order to use those funds for Tribes, EPA needed to
deviate from the regulation at 40 CFR 35.115(g), which limits EPA's
Tribal PWSS reserve to three percent. Instead of continuing to deviate
from the regulations, EPA is raising the ceiling of the annual Tribal
reserve to up to seven percent. With the additional $3.78 million PWSS
program appropriation, EPA was able to raise the funding ceiling for
Tribes to 6.91 percent, the amount available to Tribes in Fiscal Year
2000, without reducing current State funding levels.
Safe Drinking Water Act and Alaska Native Villages. EPA is
including a new interpretation of the definition of ``Indian Tribe'' in
42 U.S.C. 300f(14) that would include eligible Alaska Native Villages
(ANVs) for purposes of PWSS and Underground Water Source Protection
(also known as underground injection control (UIC)) grants under 42
U.S.C. 300j-2(a) and (b). It will also allow ANVs to be considered for
primacy for the PWSS and UIC programs under 42 U.S.C. 300g-2, 300h-1
and 300h-4. Under this approach, a federally recognized Tribe in Alaska
could seek to demonstrate that it is eligible for treatment in the same
manner as a State according to the criteria established by Congress in
42 U.S.C. 300j-11 and in EPA's regulations at 40 CFR 142.72 and 145.52.
In 1988, EPA announced its interpretation that the term ``Indian
Tribe'' in 42 U.S.C. 300(f)(14) does not include ANVs. 53 FR 37396,
37407. This interpretation was based on the Agency's interpretation of
the legislative history of the Act. At the time, EPA reasoned that
Congress would have explicitly mentioned ANVs if it intended to include
ANVs in the definition of Indian Tribes. Since then, EPA has
reconsidered that interpretation and now believes it is more consistent
with Congressional intent and federal Indian law and policy to
interpret the term ``Indian Tribe'' in 42 U.S.C. 300f(14) to include
Indian Tribes located in Alaska (i.e., ANVs) that otherwise meet the
SDWA's definition of Indian Tribe.
Under the SDWA, the term ``Indian Tribe'' means ``any Indian Tribe
having a federally recognized governing body carrying out substantial
governmental duties and powers over any area.'' 42 U.S.C. 300(f)(14).
In 1993, the Department of the Interior (DOI) clarified that the Alaska
Native entities listed on DOI's list of federally recognized Tribes
have the same governmental status as other federally acknowledged
Indian Tribes by virtue of their status as Indian Tribes with a
government-to-government relationship with the United States; are
entitled to the same protection, immunities, privileges as other
acknowledged Tribes; have the right, subject to general principles of
federal Indian law, to exercise the same inherent and delegated
authorities available to other Tribes; and are subject to the same
limitations imposed by law on other Tribes. 58 FR 54364, 54366 (1993).
Thus, because DOI has clarified that federally-recognized Tribes in
Alaska have the same status as other federally-recognized Tribes, EPA
believes that ANVs that otherwise meet the SDWA's definition of Indian
Tribe should not be excluded from seeking PWSS and UIC program primacy
or related program grants. This interpretation is consistent with the
plain language of the SDWA's definition of ``Indian Tribe'' and EPA's
policy that Indian Tribes are the appropriate entities to set
environmental standards and manage their environments where they have
the authority and capability to do so. See EPA's 1984 Indian Policy. It
is also consistent with Supreme Court precedent holding that any
statutory
[[Page 3793]]
limitations on Tribal sovereignty must be stated explicitly, Santa
Clara Pueblo v. Martinez, 436 U.S. 49 (1978); Montana v. Blackfeet
Indian Tribe, 471 U.S. 759 (1985), and that statutes are to be
construed liberally in favor of the Indians, with ambiguous provisions
interpreted for their benefit. County of Yakima v. Yakima Indian
Nation, 502 U.S. 251, 268 (1992).
While this change in interpretation would include ANVs that
otherwise meet the SDWA's definition of Indian Tribe within the context
of the PWSS and UIC programs, any ANV wishing to seek primacy, or a
primacy development grant, for either the PWSS or UIC programs would
still need to demonstrate that it meets the relevant statutory and
regulatory eligibility criteria, including the jurisdictional
requirements contained in 42 U.S.C. 300j-11, 40 CFR 142.72 and 145.52,
40 CFR 35.676 and 35.686 of this subpart. Furthermore, upon the request
of an Alaska Tribe in an application for grant or primacy eligibility,
EPA will evaluate whether the Alaska Tribe meets the criteria for
program primacy or a related program grant. The State of Alaska
currently has primacy for PWSS and UIC (Class II wells) for all areas
in Alaska except Indian country. EPA is not amending the extent of the
State's primacy through this notice.
In the 1996 amendments to the Safe Drinking Water Act, Congress
added a sentence to the definition of Indian Tribe explicitly noting
that the term ``Indian Tribe'' for purposes of the State Revolving Fund
(SRF) program includes ``any Native village.'' 42 U.S.C. 300f(14). EPA
believes that, through this change, Congress only intended to ensure
that all Native villages may receive SRF grants. EPA believes that this
provision was not intended to mean that federally-recognized Tribes
carrying out substantial governmental duties and powers in Alaska are
excluded from the definition of Indian Tribe for purposes other than
SRF.
Regulations for programs to manage hazardous waste and underground
storage tanks. After the EPA workgroup reached closure on the proposed
rule, Congress authorized the Agency to award grants to Tribes ``for
the development and implementation of programs to manage hazardous
waste, and underground storage tanks.'' Departments of Veterans Affairs
and Housing and Urban Development, and Independent Agencies
Appropriations Act, 1999, Pub. L. 105-276, 112 Stat. 2461, 2499 (1998).
EPA has included regulations for these programs in the final rule.
XI. Conclusion
This Tribal-specific subpart reflects EPA's regulatory and
budgetary efforts to improve the continuity and stability of financial
assistance for Tribal environmental programs. Recipients will benefit
from the streamlined and simplified requirements of the regulation. In
addition, it will provide Tribes and Intertribal Consortia choosing to
participate in the PPG program with the flexibility to better use funds
to address their environmental priorities.
Regulatory Flexibility Act
This final rule is not subject to the Regulatory Flexibility Act
(RFA), which generally requires an agency to prepare a regulatory
flexibility analysis for any rule that will have a significant economic
impact on a substantial number of small entities. The RFA applies only
to rules for which notice and comment rule making is required under the
Administrative Procedure Act (APA) or any another statute. Grant award
and administration matters, such as this rule, are explicitly exempt
from the notice and comment requirements of the APA (5 U.S.C.
553(a)(1)) and are not required to undergo notice and comment rule
making under any other statute.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, 2 U.S.C. 1501 et seq., 109 Stat. 48 (1995), establishes
requirements for federal agencies to assess the effects of their
regulatory actions on State, local, and Tribal governments and the
private sector. Under section 202 of the UMRA, EPA generally must
prepare a written statement, including a cost-benefit analysis, for
proposed and final rules with ``federal mandates'' that may result in
expenditures by State, local, and Tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any one year. This
regulation contains no federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or Tribal
governments or the private sector. The UMRA excludes from the
definitions of ``federal intergovernmental mandate'' and ``federal
private sector mandates'' duties that arise from conditions of federal
assistance.
National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA), requires EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impracticable. Voluntary consensus
standards are technical standards (e.g., materials specifications, test
methods, sampling procedures, business practices, etc.) that are
developed or adopted by voluntary consensus standards bodies. Where
available and potentially applicable voluntary consensus standards are
not used, the Act requires EPA to provide Congress, through the Office
of Management and Budget, an explanation of the reasons for not using
such standards.
This rule does not involve any technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
Executive Order 13045--Protection of Children from Environmental
Health Risks and Safety Risks
Executive Order 13045 applies to any rule that is determined to be:
(1) ``Economically significant'' as defined under Executive Order
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, EPA must evaluate the
environmental health or safety effects of the planned rule on children;
and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
EPA interprets E.O. 13045 as applying only to those regulatory
actions that are based on health or safety risks, such that the
analysis required under section 5-501 of the Order has the potential to
influence the regulation. This rule is not subject to E.O. 13045
because it does not establish an environmental standard intended to
mitigate health or safety risks.
Executive Order 12866
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) a
significant regulatory action is subject to OMB review and the
requirements of the Executive Order. The Order defines ``significant
regulatory action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
[[Page 3794]]
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is a ``significant regulatory
action'' under the terms of Executive Order 12866 because the
Performance Partnership Grant authority is a new type of grant
authority and therefore raises novel policy issues. As such, this
action was submitted to the Office of Management and Budget (OMB) for
review. Changes made in response to OMB suggestions and recommendations
will be documented in the public record.
Paperwork Reduction Act
In keeping with the requirements of the Paperwork Reduction Act
(PRA), as amended, 44 U.S.C. 3501 et seq., the information collection
requirements contained in this rule have been approved by OMB under
information collection request number 0938.06 (OMB Control Number 2030-
0020) and Quality Assurance Specifications and Requirements information
request number 0866.05 (OMB Control Number 2080-0033). This rule does
not contain any collection of information requirements beyond those
already approved. Since this action imposes no new or additional
information collection, reporting or record-keeping requirements
subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., no
information request has been or will be submitted to the Office of
Management and Budget for review.
Executive Order 13132--Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law, unless
the Agency consults with State and local officials early in the process
of developing the proposed regulation.
This final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. This rule does not apply to
States or local governments; it applies only to Tribes and Intertribal
Consortia. Executive Order 13132 does not apply to Tribes and
Intertribal Consortia. Thus, the requirements of section 6 of the
Executive Order do not apply to this rule.
Executive Order 13084
Under Executive Order 13084, Consultation and Coordination with
Indian Tribal Governments, EPA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian Tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the federal
government provides the funds necessary to pay the direct compliance
costs incurred by the Tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected Tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian Tribal governments ``to provide meaningful and timely input in
the development of regulatory policies on matters that significantly or
uniquely affect their communities.''
This rule may significantly or uniquely affect the communities of
Indian Tribal governments, but it will not impose substantial direct
compliance costs on such communities. This rule governs financial
assistance to Tribes. Any costs associated with this regulation will be
incurred by a Tribe as a result of its discretionary decision to seek
financial assistance. Accordingly, the requirements of Executive order
13084 do not apply.
Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective thirty days after publication in
the Federal Register.
List of Subjects
40 CFR Part 31
Environmental protection. Administrative practice and procedure,
Grant programs, Indians, Intergovernmental relations, Loan programs,
Reporting and recordkeeping requirements.
40 CFR Part 35
Environmental protection, Air pollution control, Coastal zone,
Grant programs-environmental protection, Grant programs-Indians,
Hazardous waste, Indians, Intergovernmental relations, Pesticides and
pests, Reporting and recordkeeping requirements, Superfund, Waste
treatment and disposal, Water pollution control, Water supply.
Dated: December 28, 2000.
Carol M. Browner,
Administrator.
For the reasons set forth in this preamble, title 40, chapter I of
the Code of Federal Regulations is amended as follows:
PART 31--[AMENDED]
1. EPA is amending 40 CFR part 31 by revising 40 CFR 31.36(b)(1)
and adding a new 40 CFR 31.38 to read as follows:
[[Page 3795]]
Sec. 31.36 Procurement.
* * * * *
(b) Procurement Standards. (1) Grantees and subgrantees will use
their own procurement procedures which reflect applicable State and
local laws and regulations, provided that the procurements conform to
applicable federal law, the standards identified in this section, and
if applicable, Sec. 31.38.
* * * * *
Sec. 31.38 Indian Self Determination Act.
Any contract, subcontract, or subgrant awarded under an EPA grant
by an Indian Tribe or Indian Intertribal Consortium shall require to
the extent feasible:
(a) Preferences and opportunities for training and employment in
connection with the administration of such contracts or grants shall be
given to Indians as defined in the Indian Self Determination Act (25
U.S.C. 450b); and
(b) Preference in the award of subcontracts and subgrants in
connection with the administration of such contracts or grants shall be
given to Indian organizations and to Indian-owned economic enterprises
as defined in section 3 of the Indian Financing Act of 1974 (88 Stat.
77) [25 U.S.C. 1452].
PART 35--[AMENDED]
2. EPA is removing 40 CFR part 35, subpart Q.
3. EPA is adding a new 40 CFR part 35, subpart B to read as
follows.
Subpart B--Environmental Program Grants for Tribes
General--All Grants
Sec.
35.500 Purpose of the subpart.
35.501 Environmental programs covered by the subpart.
35.502 Definitions of terms.
35.503 Deviation from this subpart.
35.504 Eligibility of an Intertribal Consortium.
Preparing an Application
35.505 Components of a complete application.
35.506 Time frame for submitting an application.
35.507 Work plans.
35.508 Funding period.
35.509 Consolidated grants.
EPA Action on Application
35.510 Time frame for EPA action.
35.511 Criteria for approving an application.
35.512 Factors considered in determining award amount.
35.513 Reimbursement for pre-award costs.
Post-award Requirements
35.514 Amendments and other changes.
35.515 Evaluation of performance.
35.516 Direct implementation.
35.517 Unused funds.
35.518 Unexpended balances.
Performance Partnership Grants
35.530 Purpose of Performance Partnership Grants.
35.532 Requirements summary.
35.533 Programs eligible for inclusion.
35.534 Eligible recipients.
35.535 Activities eligible for funding.
35.536 Cost share requirements.
35.537 Application requirements.
35.538 Project period.
Indian Environmental General Assistance Program (GAP)
35.540 Purpose.
35.542 Definitions.
35.543 Eligible recipients.
35.545 Eligible activities.
35.548 Award limitation.
Air Pollution Control (Section 105)
35.570 Purpose.
35.572 Definitions.
35.573 Eligible Tribe.
35.575 Maximum federal share.
35.576 Maintenance of effort.
35.578 Award limitation.
Water Pollution Control (Sections 106 and 518)
35.580 Purpose.
35.582 Definitions.
35.583 Eligible recipients.
35.585 Maximum federal share.
35.588 Award limitations.
Water Quality Cooperative Agreements (Section 104(b)(3))
35.600 Purpose.
35.603 Competitive process.
35.604 Maximum federal share.
Wetlands Development Grant Program (Section 104(b)(3))
35.610 Purpose.
35.613 Competitive process.
35.615 Maximum federal share.
Nonpoint Source Management Grants (Sections 319(h) and 518(f))
35.630 Purpose.
35.632 Definition.
35.633 Eligibility requirements.
35.635 Maximum federal share.
35.636 Maintenance of effort.
35.638 Award limitations.
Pesticide Cooperative Enforcement (Section 23 (a)(1))
35.640 Purpose.
35.641 Eligible recipients.
35.642 Maximum federal share.
35.645 Basis for allotment.
Pesticide Applicator Certification and Training (Section 23(a)(2))
35.646 Purpose.
35.649 Maximum federal share.
Pesticide Program Implementation (Section 23(a)(1))
35.650 Purpose.
35.653 Eligible recipients.
35.655 Basis for allotment.
35.659 Maximum federal share.
Pollution Prevention Grants (Section 6605)
35.660 Purpose.
35.661 Competitive process.
35.662 Definitions.
35.663 Eligible recipients.
35.668 Award limitations.
35.669 Maximum federal share.
Public Water System Supervision (Sections 1443(a) and 1451)
35.670 Purpose.
35.672 Definition.
35.673 Annual amount reserved by EPA.
35.675 Maximum federal share.
35.676 Eligible recipients.
35.678 Award limitations.
Underground Water Source Protection (Section 1443(b))
35.680 Purpose.
35.682 Definition.
35.683 Annual amount reserved by EPA.
35.685 Maximum federal share.
35.686 Eligible recipients
35.688 Award limitations.
Lead-Based Paint Program (Section 404(g))
35.690 Purpose.
35.691 Funding coordination.
35.693 Eligible recipients.
Indoor Radon Grants (Section 306)
35.700 Purpose.
35.702 Basis for allotment.
35.703 Eligible recipients.
35.705 Maximum federal share.
35.708 Award limitations.
Toxic Substances Compliance Monitoring (Section 28)
35.710 Purpose.
35.712 Competitive process.
35.713 Eligible recipients.
35.715 Maximum federal share.
35.718 Award limitation.
Hazardous Waste Management Program Grants (P.L. 105-276)
35.720 Purpose.
35.723 Competitive process.
35.725 Maximum federal share.
Underground Storage Tanks Program Grants (P.L. 105-276)
35.730 Purpose.
35.731 Eligible recipients.
35.732 Basis for allotment.
35.735 Maximum federal share.
Subpart B--Environmental Program Grants for Tribes
Authority: 42 U.S.C. 7401 et seq.; 33 U.S.C. 1251 et seq.; 42
U.S.C. 300f et seq.; 42 U.S.C. 6901 et seq.; 7 U.S.C. 136 et seq.;
15 U.S.C. 2601 et seq.; 42 U.S.C. 13101 et seq.; Pub. L. 104-134,
110 Stat. 1321, 1321-299 (1996); Pub. L. 105-65, 111 Stat. 1344,
1373 (1997); Pub. L. 105-276, 112 Stat. 2461, 2499 (1988).
General--All Grants
Sec. 35.500 Purpose of the subpart.
This subpart establishes administrative requirements for all grants
awarded to Indian Tribes and Intertribal Consortia for the
environmental programs listed in Sec. 35.501. This subpart supplements
requirements in EPA's general grant regulations found at 40 CFR part
31. Sections 35.500-518 contain administrative requirements that apply
[[Page 3796]]
to all environmental program grants included in this subpart. Sections
35.530 through 35.718 contain requirements that apply to specified
environmental program grants. Many of these environmental programs also
have programmatic and technical requirements that are published
elsewhere in the Code of Federal Regulations.
Sec. 35.501 Environmental programs covered by the subpart.
(a) The requirements in this subpart apply to all grants awarded
for the following programs:
(1) Performance Partnership Grants (1996 Omnibus Consolidated
Rescissions and Appropriations Act of 1996, Pub. L. 104-134; 110 Stat.
1321, 1321-299 (1996) and Departments of Veterans Affairs, Housing and
Urban Development, and Independent Agencies Appropriations Act of 1998,
Pub. L. 105-65; 111 Stat. 1344, 1373 (1997)).
(2) The Indian Environmental General Assistance Program Act of
1992, 42 U.S.C. 4368b.
(3) Clean Air Act. Air pollution control (section 105).
(4) Clean Water Act.
(i) Water pollution control (section 106 and 518).
(ii) Water quality cooperative agreements (section 104(b)(3)).
(iii) Wetlands development grant program (section 104(b)(3)).
(iv) Nonpoint source management (section 319(h)).
(5) Federal Insecticide, Fungicide, and Rodenticide Act.
(i) Pesticide cooperative enforcement (section 23(a)(1)).
(ii) Pesticide applicator certification and training (section
23(a)(2)).
(iii) Pesticide program implementation (section 23(a)(1)).
(6) Pollution Prevention Act of 1990. Pollution prevention grants
for Tribes (section 6605).
(7) Safe Drinking Water Act.
(i) Public water system supervision (section 1443(a)).
(ii) Underground water source protection (section 1443(b)).
(8) Toxic Substances Control Act.
(i) Lead-based paint program (section 404(g)).
(ii) Indoor radon grants (section 306).
(iii) Toxic substances compliance monitoring (section 28).
(9) Department of Veterans Affairs and Housing and Urban
Development, and Independent Agencies Appropriations Act, 1999 (Pub. L.
105-276; 112 Stat. 2461, 2499; 42 U.S.C. 6908a).
(i) Hazardous Waste Management Program Grants (Pub. L. 105-276; 112
Stat. 2461, 2499; 42 U.S.C. 6908a).
(ii) Underground Storage Tanks Program Grants (Pub. L. 105-276; 112
Stat. 2461, 2499; 42 U.S.C. 6908a).
(b) Unless otherwise prohibited by statute or regulation, the
requirements in Sec. 35.500 through Sec. 35.518 of this subpart also
apply to grants to Indian Tribes and Intertribal Consortia under
environmental programs established after this subpart becomes
effective, if specified in Agency guidance for such programs.
(c) In the event a grant is awarded from EPA headquarters for one
of the programs listed in paragraph (a) of this section, this subpart
shall apply and the term ``Regional Administrator'' shall mean
``Assistant Administrator'.
Sec. 35.502 Definitions of terms.
Terms are defined as follows when they are used in this regulation:
Consolidated grant. A single grant made to a recipient
consolidating funds from more than one environmental grant program.
After the award is made, recipients must account for grant funds in
accordance with the funds' original environmental program sources.
Consolidated grants are not Performance Partnership Grants.
Environmental program. A program for which EPA awards grants under
the authorities listed in Sec. 35.501. The grants are subject to the
requirements of this subpart.
Federal Indian reservation. All land within the limits of any
Indian reservation under the jurisdiction of the United States
Government, notwithstanding the issuance of any patent, and, including
rights-of-way running through the reservation.
Funding period. The period of time specified in the grant agreement
during which the recipient may expend or obligate funds for the
purposes set forth in the agreement.
Intertribal Consortium or Consortia. A partnership between two or
more Tribes that is authorized by the governing bodies of those Tribes
to apply for and receive assistance under one or more of the programs
listed in Sec. 35.501.
National program guidance. Guidance issued by EPA's National
Program Managers for establishing and maintaining effective
environmental programs. This guidance establishes national goals,
objectives, and priorities as well as other information to be used in
monitoring progress. The guidance may also set out specific
environmental strategies, core performance measures, criteria for
evaluating programs, and other elements of program implementation.
Outcome. The environmental result, effect, or consequence that will
occur from carrying out an environmental program or activity that is
related to an environmental or programmatic goal or objective. Outcomes
must be quantitative, and they may not necessarily be achievable during
a grant funding period. See ``output.''
Output. An environmental activity or effort and associated work
products related to an environmental goal or objective that will be
produced or provided over a period of time or by a specified date.
Outputs may be quantitative or qualitative but must be measurable
during a grant funding period. See ``outcome.''
Performance Partnership Grant. A single grant combining funds from
more than one environmental program. A Performance Partnership Grant
may provide for administrative savings or programmatic flexibility to
direct grant resources where they are most needed to address public
health and environmental priorities (see also Sec. 35.530). Each
Performance Partnership Grant has a single, integrated budget and
recipients do not need to account for grant funds in accordance with
the funds' original environmental program sources.
Planning target. The amount of funds that the Regional
Administrator suggests a grant applicant consider in developing its
application, including the work plan, for an environmental program.
Regional supplemental guidance. Guidance to environmental program
grant applicants prepared by the Regional Administrator, based on the
national program guidance and specific regional and applicant
circumstances, for use in preparing a grant application.
Tribal Environmental Agreement (TEA). A dynamic, strategic planning
document negotiated by the Regional Administrator and an appropriate
Tribal official. A Tribal Environmental Agreement may include: Long-
term and short-term environmental goals, objectives, and desired
outcomes based on Tribal priorities and available funding. A Tribal
Environmental Agreement can be a very general or specific document that
contains budgets, performance measures, outputs and outcomes that could
be used as part or all of a Performance Partnership Grant work plan, if
it meets the requirements of section 35.507(b).
Tribe. Except as otherwise defined in statute or this subpart,
Indian Tribal Government (Tribe) means: Any Indian Tribe, band, nation,
or other organized group or community, including any
[[Page 3797]]
Alaska Native village, which is recognized as eligible by the United
States Department of the Interior for the special services provided by
the United States to Indians because of their status as Indians.
Work plan. The document which identifies how and when the applicant
will use funds from environmental program grants and is the basis for
management and evaluation of performance under the grant agreement to
produce specific outputs and outcomes (see 35.507). The work plan must
be consistent with applicable federal statutes; regulations; circulars;
executive orders; and EPA delegations, approvals, or authorizations.
Work plan commitments. The outputs and outcomes associated with
each work plan component, as established in the grant agreement.
Work plan component. A negotiated set or group of work plan
commitments established in the grant agreement. A work plan may have
one or more work plan components.
Sec. 35.503 Deviation from this subpart.
EPA will consider and may approve requests for an official
deviation from non-statutory provisions of this regulation in
accordance with 40 CFR 31.6.
Sec. 35.504 Eligibility of an Intertribal Consortium.
(a) An Intertribal Consortium is eligible to receive grants under
the authorities listed in Sec. 35.501 only if the Consortium
demonstrates that all members of the Consortium meet the eligibility
requirements for the grant and authorize the Consortium to apply for
and receive assistance in accordance with paragraph (c) of this
section, except as provided in paragraph (b) of this section.
(b) An Intertribal Consortium is eligible to receive a grant under
the Indian Environmental General Assistance Program Act, in accordance
with Sec. 35.540, if the Consortium demonstrates that:
(1) A majority of its members meets the eligibility requirements
for the grant;
(2) All members that meet the eligibility requirements authorize
the Consortium to apply for and receive assistance; and
(3) It has adequate accounting controls to ensure that only members
that meet the eligibility requirements will benefit directly from the
grant project and will receive and manage grant funds, and the
Consortium agrees to a grant condition to that effect.
(c) An Intertribal Consortium must submit to EPA adequate
documentation of:
(1) The existence of the partnership between Indian Tribal
governments, and
(2) Authorization of the Consortium by all its members (or in the
case of the General Assistance Program, all members that meet the
eligibility requirements for a General Assistance Program grant) to
apply for and receive the grant(s) for which the Consortium has
applied.
Preparing an Application
Sec. 35.505 Components of a complete application.
A complete application for an environmental program grant must:
(a) Meet the requirements in 40 CFR part 31, subpart B;
(b) Include a proposed work plan (Sec. 35.507 of this subpart); and
(c) Specify the environmental program and the amount of funds
requested.
Sec. 35.506 Time frame for submitting an application.
An applicant should submit a complete application to EPA at least
60 days before the beginning of the proposed funding period.
Sec. 35.507 Work plans.
(a) Bases for negotiating work plans. The work plan is negotiated
between the applicant and the Regional Administrator and reflects
consideration of national, regional, and Tribal environmental and
programmatic needs and priorities.
(1) Negotiation considerations. In negotiating the work plan, the
Regional Administrator and applicant will consider such factors as
national program guidance; any regional supplemental guidance; goals,
objectives, and priorities proposed by the applicant; other jointly
identified needs or priorities; and the planning target.
(2) National program guidance. If an applicant proposes a work plan
that differs significantly from the goals and objectives, priorities,
or performance measures in the national program guidance associated
with the proposed work plan activities, the Regional Administrator must
consult with the appropriate National Program Manager before agreeing
to the work plan.
(3) Use of existing guidance. An applicant should base the grant
application on the national program guidance in place at the time the
application is being prepared.
(b) Work plan requirements. (1) The work plan is the basis for the
management and evaluation of performance under the grant agreement.
(2) An approvable work plan must specify:
(i) The work plan components to be funded under the grant;
(ii) The estimated work years and estimated funding amounts for
each work plan component;
(iii) The work plan commitments for each work plan component, and a
time frame for their accomplishment;
(iv) A performance evaluation process and reporting schedule in
accordance with Sec. 35.515 of this subpart; and
(v) The roles and responsibilities of the recipient and EPA in
carrying out the work plan commitments.
(3) The work plan must be consistent with applicable federal
statutes; regulations; circulars; executive orders; and delegations,
approvals, or authorizations.
(c) Tribal Environmental Agreement as work plan. An applicant may
use a Tribal Environmental Agreement or a portion of the Tribal
Environmental Agreement as the work plan or part of the work plan for
an environmental program grant if the portion of the Tribal
Environmental Agreement that is to serve as the grant work plan:
(1) Is clearly identified as the grant work plan and distinguished
from other portions of the Tribal Environmental Agreement; and
(2) Meets the requirements in Sec. 35.507(b).
Sec. 35.508 Funding period.
The Regional Administrator and applicant may negotiate the length
of the funding period for environmental program grants, subject to
limitations in appropriations and authorizing statutes.
Sec. 35.509 Consolidated grants.
Any applicant eligible to receive funds from more than one
environmental program may submit an application for a consolidated
grant. For consolidated grants, an applicant prepares a single budget
and work plan covering all of the environmental programs included in
the application. The consolidated budget must identify each
environmental program to be included, the amount of each program's
funds, and the extent to which each program's funds support each work
plan component. Recipients of consolidated grants must account for
grant funds in accordance with the funds' environmental program
sources; funds included in a consolidated grant from a particular
environmental program may be used only for that program.
EPA Action on Application
Sec. 35.510 Time frame for EPA action.
The Regional Administrator will review a complete application and
either approve, conditionally approve,
[[Page 3798]]
or disapprove it within 60 days of receipt. The Regional Administrator
will award grants for approved or conditionally approved applications
if funds are available.
Sec. 35.511 Criteria for approving an application.
(a) After evaluating other applications as appropriate, the
Regional Administrator may approve an application upon determining
that:
(1) The application meets the requirements of this subpart and 40
CFR part 31;
(2) The application meets the requirements of all applicable
federal statutes; regulations; circulars; executive orders; and EPA
delegations, approvals, or authorizations;
(3) The proposed work plan complies with the requirements of
Sec. 35.507 of this subpart; and
(4) The achievement of the proposed work plan is feasible,
considering such factors as the applicant's existing circumstances,
past performance, program authority, organization, resources, and
procedures.
(b) If the Regional Administrator finds the application does not
satisfy the criteria in paragraph (a) of this section, the Regional
Administrator may either:
(1) Conditionally approve the application if only minor changes are
required, with grant conditions necessary to ensure compliance with the
criteria, or
(2) Disapprove the application in writing.
Sec. 35.512 Factors considered in determining award amount.
(a) After approving an application under Sec. 35.511, the Regional
Administrator will consider such factors as the amount of funds
available for award to Indian Tribes and Intertribal Consortia, the
extent to which the proposed work plan is consistent with EPA guidance
and mutually agreed upon priorities, and the anticipated cost of the
work plan relative to the proposed work plan components to determine
the amount of funds to be awarded.
(b) If the Regional Administrator finds that the requested level of
funding is not justified, the Regional Administrator will attempt to
negotiate a resolution of the issues with the applicant before
determining the award amount.
Sec. 35.513 Reimbursement for pre-award costs.
(a) Notwithstanding the requirements of 40 CFR 31.23(a) (Period of
availability of funds ), and OMB cost principles, EPA may reimburse
recipients for pre-award costs incurred from the beginning of the
funding period established in the grant agreement if such costs would
have been allowable if incurred after the award. Such costs must be
specifically identified in the grant application EPA approves.
(b) The applicant incurs pre-award costs at its own risk. EPA is
under no obligation to reimburse such costs unless they are included in
an approved grant application.
Post-Award Requirements
Sec. 35.514 Amendments and other changes.
The provisions of 40 CFR 31.30 do not apply to environmental
program grants awarded under this subpart. The following provisions
govern amendments and other changes to grant work plans and budgets
after the work plan is negotiated and a grant awarded.
(a) Changes requiring prior approval. The recipient needs the
Regional Administrator's prior written approval to make significant
post-award changes to work plan commitments. EPA, in consultation with
the recipient, will document approval of these changes including
budgeted amounts associated with the revisions.
(b) Changes requiring approval. Recipients must request, in
writing, grant amendments for changes requiring increases in
environmental program grant amounts and extensions of the funding
period. Recipients may begin implementing a change before the amendment
has been approved by EPA, but do so at their own risk. If EPA approves
the change, EPA will issue a grant amendment. EPA will notify the
recipient in writing if the change is disapproved.
(c) Changes not requiring approval. Other than those situations
described in paragraphs (a) and (b) of this section, recipients do not
need to obtain approval for changes, including changes in grant work
plans, budgets, or other parts of grant agreements, unless the Regional
Administrator determines approval requirements should be imposed on a
specific recipient for a specified period of time.
(d) Office of Management and Budget (OMB) cost principles. The
Regional Administrator may waive, in writing, approval requirements for
specific recipients and costs contained in OMB cost principles.
(e) Changes in consolidated grants. Recipients of consolidated
grants under Sec. 35.509 may not transfer funds among environmental
programs.
(f) Subgrants. Subgrantees must request required approvals in
writing from the recipient and the recipient shall approve or
disapprove the request in writing. A recipient will not approve any
work plan or budget revision which is inconsistent with the purpose or
terms and conditions of the federal grant to the recipient. If the
revision requested by the subgrantee would result in a significant
change to the recipient's approved grant which requires EPA approval,
the recipient will obtain EPA's approval before approving the
subgrantee's request.
Sec. 35.515 Evaluation of performance.
(a) Joint evaluation process. The applicant and the Regional
Administrator will develop a process for jointly evaluating and
reporting progress and accomplishments under the work plan (see section
35.507(b)(2)(iv)). A description of the evaluation process and
reporting schedule must be included in the work plan. The schedule must
require the recipient to report at least annually and must satisfy the
requirements for progress reporting under 40 CFR 31.40(b).
(b) Elements of the evaluation process. The evaluation process must
provide for:
(1) A discussion of accomplishments as measured against work plan
commitments;
(2) A discussion of the cumulative effectiveness of the work
performed under all work plan components;
(3) A discussion of existing and potential problem areas; and
(4) Suggestions for improvement, including, where feasible,
schedules for making improvements.
(c) Resolution of issues. If the joint evaluation reveals that the
recipient has not made sufficient progress under the work plan, the
Regional Administrator and the recipient will negotiate a resolution
that addresses the issues. If the issues cannot be resolved through
negotiation, the Regional Administrator may take appropriate measures
under 40 CFR 31.43. The recipient may request review of the Regional
Administrator's decision under the dispute processes in 40 CFR 31.70.
(d) Evaluation reports. The Regional Administrator will ensure that
the required evaluations are performed according to the negotiated
schedule and that copies of evaluation reports are placed in the
official files and provided to the recipient.
Sec. 35.516 Direct implementation.
If funds for an environmental program remain after Tribal and
Intertribal Consortia environmental program grants for that program
have been awarded or because no grants were awarded, the Regional
Administrator may, subject to any limitations contained in
[[Page 3799]]
appropriation acts, use all or part of the funds to support a federal
program required by law in the absence of an acceptable Tribal program.
Sec. 35.517 Unused funds.
If funds for an environmental program remain after Tribal and
Intertribal Consortia grants for that program have been awarded or
because no grants were awarded, and the Regional Administrator does not
use the funds under Sec. 35.516 of this subpart, the Regional
Administrator may award the funds to any eligible Indian Tribe or
Intertribal Consortium in the region (including a Tribe or Intertribal
Consortium that has already received funds) for the same environmental
program or for a Performance Partnership Grant, subject to any
limitations in appropriation acts.
Sec. 35.518 Unexpended balances.
Subject to any relevant provisions of law, if a recipient's final
Financial Status Report shows unexpended balances, the Regional
Administrator will deobligate the unexpended balances and make them
available, either to the same recipient or other Tribes or Intertribal
Consortia in the region, for environmental program grants.
Performance Partnership Grants
Sec. 35.530 Purpose of Performance Partnership Grants.
(a) Purpose of section. Sections 35.530 through 35.538 govern
Performance Partnership Grants to Tribes and Intertribal Consortia
authorized in the Omnibus Consolidated Rescissions and Appropriations
Act of 1996 (Pub. L. 104-134; 110 Stat. 1321, 1321-299 (1996)) and
Departments of Veterans Affairs and Housing and Urban Development, and
Independent Agencies Appropriations Act, 1998 (Pub. L. 105-65; 111
Stat. 1344, 1373 (1997)).
(b) Purpose of program. Performance Partnership Grants enable
Tribes and Intertribal Consortia to combine funds from more than one
environmental program grant into a single grant with a single budget.
Recipients do not need to account for Performance Partnership Grant
funds in accordance with the funds' original environmental program
sources; they need only account for total Performance Partnership Grant
expenditures. Subject to the requirements of this subpart, the
Performance Partnership Grant program is designed to:
(1) Strengthen partnerships between EPA and Tribes and Intertribal
Consortia through joint planning and priority setting and better
deployment of resources;
(2) Provide Tribes and Intertribal Consortia with flexibility to
direct resources where they are most needed to address environmental
and public health priorities;
(3) Link program activities more effectively with environmental and
public health goals and program outcomes;
(4) Foster development and implementation of innovative approaches,
such as pollution prevention, ecosystem management, and community-based
environmental protection strategies; and
(5) Provide savings by streamlining administrative requirements.
Sec. 35.532 Requirements summary.
(a) Applicants and recipients of Performance Partnership Grants
must meet:
(1) The requirements in Secs. 35.500 to 35.518 of this subpart
which apply to all environmental program grants, including Performance
Partnership Grants; and
(2) The requirements in Secs. 35.530 to 35.538 of this subpart
which apply only to Performance Partnership Grants.
(b) In order to include funds from an environmental program grant
listed in Sec. 35.501(a) of this subpart in a Performance Partnership
Grant, applicants must meet the requirements for award of each
environmental program from which funds are included in the Performance
Partnership Grant, except the requirements at Secs. 35.548(c),
35.638(b) and (c), 35.691, and 35.708 (c), (d), (e), and (g). These
requirements can be found in this regulation beginning at Sec. 35.540.
If the applicant is an Intertribal Consortium, each Tribe that is a
member of the Consortium must meet the requirements.
(3) Apply for the environmental program grant.
(4) Obtain the Regional Administrator's approval of the application
for that grant.
(c) If funds from an environmental program are not included in a
Performance Partnership Grant, an applicant is not required to meet the
eligibility requirements for that environmental program grant in order
to carry out activities eligible under that program as provided in
Sec. 35.535.
Sec. 35.533 Programs eligible for inclusion.
(a) Eligible programs. Except as provided in paragraph (b) of this
section, the environmental program grants eligible for inclusion in a
Performance Partnership Grant are listed in Sec. 35.501(a)(2) through
(9) of this subpart.
(b) Changes in eligible programs. The Administrator may, in
guidance or regulation, describe subsequent additions, deletions, or
changes to the list of environmental programs eligible for inclusion in
Performance Partnership Grants.
Sec. 35.534 Eligible recipients.
(a) A Tribe or Intertribal Consortium is eligible for a Performance
Partnership Grant if the Tribe or each member of the Intertribal
Consortium is eligible for, and the Tribe or Intertribal Consortium
receives funding from, more than one of the environmental program
grants listed in Sec. 35.501(a) in accordance with the requirements for
those environmental programs.
(b) For grants to Tribes, a Tribal agency must be designated by a
Tribal government or other authorized Tribal process to receive grants
under each of the environmental programs to be combined in the
Performance Partnership Grant.
Sec. 35.535 Activities eligible for funding.
(a) Delegated, approved, or authorized activities. A Tribe or
Intertribal Consortium may use Performance Partnership Grant funds to
carry out EPA-delegated, EPA-approved, or EPA-authorized activities,
such as permitting and primary enforcement responsibility only if the
Tribe or each member of the Intertribal Consortium receives from the
Regional Administrator the delegations, approvals, or authorizations to
conduct such activities.
(b) Other program activities. Except for the limitation in
paragraph (a) of this section, a Tribe or Intertribal Consortium may
use Performance Partnership Grant funds for any activity that is
eligible under the environmental programs listed in Sec. 35.501(a) of
this subpart, as determined by the Regional Administrator. If an
applicant proposes a Performance Partnership Grant work plan that
differs significantly from any of the proposed work plans approved for
funding that the applicant now proposes to move into a Performance
Partnership Grant, the Regional Administrator must consult with the
appropriate National Program Managers before agreeing to the
Performance Partnership Grant work plan. National Program Managers may
expressly waive or modify this requirement for consultation in national
program guidance. National Program Managers also may define in national
program guidance ``significant'' differences from a work plan submitted
with a Tribe's or a Consortium's application for funds.
[[Page 3800]]
Sec. 35.536 Cost share requirements.
(a) The Performance Partnership Grant cost share shall be the sum
of the amounts required for each environmental program grant included
in the Performance Partnership Grant, as determined in accordance with
paragraphs (b) and (c) of this section, unless waived under paragraph
(d) of this section.
(b) For each environmental program grant included in the
Performance Partnership Grant that has a cost share of five percent or
less under the provisions of Secs. 35.540 through 35.718, the required
cost share shall be that identified in Secs. 35.540 through 35.718 of
this subpart.
(c) For each environmental program grant included in the
Performance Partnership Grant that has a cost share of greater than
five percent under the provisions of Secs. 35.540 through 35.718 of
this subpart, the required cost share shall be five percent of the
allowable cost of the work plan budget for that program. However, after
the first two years in which a Tribe or Intertribal Consortium receives
a Performance Partnership Grant, the Regional Administrator must
determine through objective assessment whether the Tribe or the members
of an Intertribal Consortium meet socio-economic indicators that
demonstrate the ability of the Tribe or the Intertribal Consortium to
provide a cost share greater than five percent. If the Regional
Administrator determines that the Tribe or the members of Intertribal
Consortium meets such indicators, then the Regional Administrator shall
increase the required cost share up to a maximum of 10 percent of the
allowable cost of the work plan budget for each program with a cost
share greater than five percent.
(d) The Regional Administrator may waive the cost share required
under this section upon request of the Tribe or Intertribal Consortium,
if, based on an objective assessment of socio-economic indicators, the
Regional Administrator determines that meeting the cost share would
impose undue hardship.
Sec. 35.537 Application requirements.
An application for a Performance Partnership Grant must contain:
(a) A list of the environmental programs and the amount of funds
from each program to be combined in the Performance Partnership Grant;
(b) A consolidated budget;
(c) A consolidated work plan that addresses each program being
combined in the grant and which meets the requirements of Sec. 35.507.
Sec. 35.538 Project period.
If the projected completion date for a work plan commitment funded
under an environmental program grant that is added to a Performance
Partnership Grant extends beyond the end of the project period for the
Performance Partnership Grant, the Regional Administrator and the
recipient will agree in writing as to how and when the work plan
commitment will be completed.
Indian Environmental General Assistance Program (GAP)
Sec. 35.540 Purpose.
(a) Purpose of section. Sections 35.540 through 35.547 govern
grants to Tribes and Intertribal Consortia under the Indian
Environmental General Assistance Program Act of 1992 (42 U.S.C. 4368b.)
(b) Purpose of program. Indian Environmental General Assistance
Program grants are awarded to build capacity to administer
environmental programs for Tribes by providing general assistance to
plan, develop, and establish environmental protection programs for
Tribes.
Sec. 35.543 Eligible recipients.
The following entities are eligible to receive grants under this
program:
(a) Tribes and
(b) Intertribal Consortia as provided in Sec. 35.504.
Sec. 35.545 Eligible activities.
Tribes and Intertribal Consortia may use General Assistance Program
funds for planning, developing, and establishing environmental
protection programs and to develop and implement solid and hazardous
waste programs for Tribes.
Sec. 35.548 Award limitations.
(a) Each grant awarded under the General Assistance Program shall
be not less than $75,000. This limitation does not apply to additional
funds that may become available for award to the same Tribe or
Intertribal Consortium.
(b) The Regional Administrator shall not award a grant to a single
Tribe or Intertribal Consortium of more than 10 percent of the total
annual funds appropriated under the Act.
(c) The project period of a General Assistance Program award may
not exceed four years.
(d) No award under this program shall result in reduction of total
EPA grants for environmental programs to the recipient.
Air Pollution Control (Section 105)
Sec. 35.570 Purpose.
(a) Purpose of section. Sections 35.570 through 35.578 govern air
pollution control grants to Tribes (as defined in section 302(r) of the
Clean Air Act (CAA)) authorized under sections 105 and 301(d) of the
Act and Intertribal Consortia.
(b) Purpose of program. Air pollution control grants are awarded to
develop and administer programs that prevent and control air pollution
or implement national air quality standards for air resources within
the exterior boundaries of the reservation or other areas within the
Tribe's jurisdiction.
(c) Associated program regulations. Refer to 40 CFR parts 49, 50,
51, 52, 58, 60, 61, 62, and 81 for associated program regulations.
Sec. 35.572 Definitions.
In addition to the definitions in Sec. 35.502, the following
definitions apply to the Clean Air Act's section 105 grant program:
Nonrecurrent expenditures are those expenditures which are shown by
the recipient to be of a nonrepetitive, unusual, or singular nature
such as would not reasonably be expected to recur in the foreseeable
future. Costs categorized as nonrecurrent must be approved in the grant
agreement or an amendment thereto.
Recurrent expenditures are those expenses associated with the
activities of a continuing environmental program. All expenditures are
considered recurrent unless justified by the applicant as nonrecurrent
and approved as such in the grant award or an amendment thereto.
Sec. 35.573 Eligible tribe.
(a) A Tribe is eligible to receive section 105 financial assistance
under Secs. 35.570 through 35.578 if it has demonstrated eligibility to
be treated as a State under 40 CFR 49.6. An Intertribal Consortium
consisting of Tribes that have demonstrated eligibility to be treated
as States under 40 CFR 49.6 is also eligible for financial assistance.
(b) Tribes that have not made a demonstration under 40 CFR 49.6 and
Intertribal Consortia consisting of Tribes that have not demonstrated
eligibility to be treated as States under 40 CFR 49.6 are eligible for
financial assistance under sections 105 and 302(b)(5) of the Clean Air
Act.
Sec. 35.575 Maximum federal share.
(a) For Tribes and Intertribal Consortia eligible under
Sec. 35.573(a), the
[[Page 3801]]
Regional Administrator may provide financial assistance in an amount up
to 95 percent of the approved costs of planning, developing,
establishing, or improving an air pollution control program, and up to
95 percent of the approved costs of maintaining that program. After two
years from the date of each Tribe's or Intertribal Consortium's initial
grant award, the Regional Administrator will reduce the maximum federal
share to 90 percent if the Regional Administrator determines that the
Tribe or each member of the Intertribal Consortium meets certain
economic indicators that would provide an objective assessment of the
Tribe's or each of the Intertribal Consortiums member's ability to
increase its share. For a Tribe or Intertribal Consortium eligible
under Sec. 35.573(a), the Regional Administrator may increase the
maximum federal share if the Tribe or Intertribal Consortium can
demonstrate in writing to the satisfaction of the Regional
Administrator that fiscal circumstances within the Tribe or within the
member Tribes of the Intertribal Consortium are constrained to such an
extent that fulfilling the match requirement would impose undue
hardship.
(b) For Tribes and Intertribal Consortia eligible under
Sec. 35.573(b), the Regional Administrator may provide financial
assistance in an amount up to 60 percent of the approved costs of
planning, developing, establishing, or improving an air pollution
control program, and up to 60 percent of the approved costs of
maintaining that program.
(c) Revenue collected under a Tribal Title V operating permit
program may not be used to meet the cost share requirements of this
section.
Sec. 35.576 Maintenance of effort.
(a) For Tribes and Intertribal Consortia that are eligible for
financial assistance under Sec. 35.573(b) of this subpart, the Tribe or
each of the Intertribal Consortium's members must expend annually, for
recurrent Section 105 program expenditures, an amount of non-federal
funds at least equal to such expenditures during the preceding fiscal
year.
(1) In order to award grants in a timely manner each fiscal year,
the Regional Administrator shall compare a Tribe's or each of the
Intertribal Consortium's member's proposed expenditure level, as
detailed in the grant application, to its expenditure level in the
second preceding fiscal year. When expenditure data for the preceding
fiscal year is complete, the Regional Administrator shall use this
information to determine the Tribe's or Intertribal Consortium's
compliance with its maintenance of effort requirement.
(2) If expenditure data for the preceding fiscal year shows that a
Tribe or Intertribal Consortium did not meet the requirements of
paragraph (a) of this section, the Regional Administrator will take
action to recover the grant funds for that year.
(3) The Regional Administrator may grant an exception to
Sec. 35.576(a) if, after notice and opportunity for a public hearing,
the Regional Administrator determines that a reduction in expenditures
is attributable to a non-selective reduction of all the Tribe's or each
of the Intertribal Consortium's member's programs.
(b) For Tribes and Intertribal Consortia that are eligible under
Sec. 35.573(b), the Regional Administrator will not award Section 105
funds unless the applicant provides assurance that the grant will not
supplant non-federal funds that would otherwise be available for
maintaining the Section 105 program.
Sec. 35.578 Award limitation.
The Regional Administrator will not disapprove an application for,
or terminate or annul an award of, financial assistance under
Sec. 35.573 without prior notice and opportunity for a public hearing
within the appropriate jurisdiction or, where more than one area is
affected, within one of the affected areas within the jurisdiction
Water Pollution Control (Sections 106 and 518)
Sec. 35.580 Purpose.
(a) Purpose of section. Sections 35.580 through 35.588 govern water
pollution control grants to eligible Tribes and Intertribal Consortia
(as defined in Sec. 35.502) authorized under sections 106 and 518 of
the Clean Water Act.
(b) Purpose of program. Water pollution control grants are awarded
to assist Tribes and Intertribal Consortia in administering programs
for the prevention, reduction, and elimination of water pollution,
including programs for the development and implementation of ground-
water protection strategies.
(c) Associated program requirements. Program requirements for water
quality planning and management activities are provided in 40 CFR part
130.
Sec. 35.582 Definitions.
Federal Indian reservation. All land within the limits of any
Indian reservation under the jurisdiction of the United States
Government, notwithstanding the issuance of any patent, and, including
rights-of-way running through the reservation.
Tribe. Any Indian Tribe, band, group, or community recognized by
the Secretary of the Interior, exercising governmental authority over a
federal Indian reservation.
Sec. 35.583 Eligible recipients.
A Tribe, including an Intertribal Consortium, is eligible to
receive a section 106 grant if EPA determines that the Indian Tribe or
each member of the Intertribal Consortium meets the requirements for
treatment in a manner similar to a State under section 518(e) of the
Clean Water Act (see 40 CFR 130.6(d)).
Sec. 35.585 Maximum federal share.
(a) The Regional Administrator may provide up to 95 percent of the
approved work plan costs for Tribes or Intertribal Consortia
establishing a section 106 program. Work plan costs include costs of
planning, developing, establishing, improving or maintaining a water
pollution control program.
(b) The Regional Administrator may increase the maximum federal
share if the Tribe or Intertribal Consortium can demonstrate in writing
to the satisfaction of the Regional Administrator that fiscal
circumstances within the Tribe or within each Tribe that is a member of
an Intertribal Consortium are constrained to such an extent that
fulfilling the match requirement would impose undue hardship.
Sec. 35.588 Award limitations.
(a) The Regional Administrator will only award section 106 funds to
a Tribe or Intertribal Consortium if:
(1) All monitoring and analysis activities performed by the Tribe
or Intertribal Consortium meets the applicable quality assurance and
quality control requirements in 40 CFR 31.45.
(2) The Tribe or each member of the Intertribal Consortium has
emergency power authority comparable to that in section 504 of the
Clean Water Act and adequate contingency plans to implement such
authority.
(3) EPA has not assumed enforcement as defined in section 309(a)(2)
of the Clean Water Act in the Tribe's or any Intertribal Consortium
member's jurisdiction.
(4) The Tribe or Intertribal Consortium agrees to include a
discussion of how the work performed under section 106 addressed water
quality problems on Tribal lands in the annual report required under
Sec. 35.515(d).
[[Page 3802]]
(5) After an initial award of section 106 funds, the Tribe or
Intertribal Consortium shows satisfactory progress in meeting its
negotiated work plan commitments.
(b) A Tribe or Intertribal Consortium is eligible to receive a
section 106 grant or section 106 grant funds even if the Tribe or each
of the members of an Intertribal Consortium does not meet the
requirements of section 106(e)(1) and 106(f)(1) of the Clean Water Act.
Water Quality Cooperative Agreements (Section 104(b)(3))
Sec. 35.600 Purpose.
(a) Purpose of section. Sections 35.600 through 35.604 govern Water
Quality Cooperative Agreements to Tribes and Intertribal Consortia
authorized under section 104(b)(3) of the Clean Water Act. These
sections do not govern Water Quality Cooperative Agreements under
section 104(b)(3) to organizations that do not meet the definitions of
Tribe or Intertribal Consortium in Sec. 35.502; such cooperative
agreements generally are subject to the uniform administrative
requirements for grants at 40 CFR part 30.
(b) Purpose of program. EPA awards Water Quality Cooperative
Agreements for investigations, experiments, training, demonstrations,
surveys, and studies relating to the causes, effects, extent,
prevention, reduction, and elimination of water pollution. EPA issues
guidance each year advising EPA regions and headquarters regarding
appropriate priorities for funding for this program. This guidance may
include such focus areas as National Pollutant Discharge Elimination
System watershed permitting, urban wet weather programs, or innovative
pretreatment programs and biosolids projects.
Sec. 35.603 Competitive process.
EPA will award water quality cooperative agreement funds through a
competitive process in accordance with national program guidance. After
the competitive process is complete, the recipient can, at its
discretion, accept the award as a separate cooperative agreement or add
the funds to a Performance Partnership Grant. If the recipient chooses
to add the funds to a Performance Partnership Grant, the water quality
work plan commitments must be included in the Performance Partnership
Grant work plan.
Sec. 35.604 Maximum federal share.
The Regional Administrator may provide up to 100 percent of
approved work plan costs.
Wetlands Development Grant Program (Section 104(b)(3))
Sec. 35.610 Purpose.
(a) Purpose of section. Sections 35.610 through 35.615 govern
wetlands development grants to Tribes and Intertribal Consortia under
section 104(b)(3) of the Clean Water Act. These sections do not govern
wetlands development grants under section 104(b)(3) to organizations
that do not meet the definitions of Tribe or Intertribal Consortium in
Sec. 35.502; such grants generally are subject to the uniform
administrative requirements for grants at 40 CFR part 30.
(b) Purpose of program. EPA awards wetlands development grants to
assist in the development of new, or the refinement of existing,
wetlands protection and management programs.
Sec. 35.613 Competitive process.
Wetlands development grants are awarded on a competitive basis. EPA
annually establishes a deadline for receipt of grant applications. EPA
reviews applications and decides which grant projects to fund based on
criteria established by EPA. After the competitive process is complete,
the recipient can, at its discretion, accept the award as a wetlands
development program grant or add the funds to a Performance Partnership
Grant. If the recipient chooses to add the funds to a Performance
Partnership Grant, the wetlands development program work plan
commitments must be included in the Performance Partnership Grant work
plan.
Sec. 35.615 Maximum federal share.
EPA may provide up to 75 percent of the approved work plan costs
for the development or refinement of a wetlands protection and
management program.
Nonpoint Source Management Grants (Sections 319(h) and 518(f))
Sec. 35.630 Purpose.
(a) Purpose of section. Sections 35.630 through 35.638 govern
nonpoint source management grants to eligible Tribes and Intertribal
Consortia under sections 319(h) and 518(f) of the Clean Water Act.
(b) Purpose of program. Nonpoint source management grants may be
awarded for the implementation of EPA-approved nonpoint source
management programs, including ground-water quality protection
activities that will advance the approved nonpoint source management
program.
Sec. 35.632 Definition.
Tribe. Any Indian Tribe, band, group, or community recognized by
the Secretary of the Interior and exercising governmental authority
over a federal Indian reservation.
Sec. 35.633 Eligibility requirements.
A Tribe or Intertribal Consortium is eligible to receive a Nonpoint
Source Management grant if EPA has determined that the Tribe or each
member of the Intertribal Consortium meets the requirements for
treatment in a manner similar to a State under section 518(e) of the
Clean Water Act (see 40 CFR 130.6(d)).
Sec. 35.635 Maximum federal share.
(a) The Regional Administrator may provide up to 60 percent of the
approved work plan costs in any fiscal year. The non-federal share of
costs must be provided from non-federal sources.
(b) The Regional Administrator may increase the maximum federal
share if the Tribe or Intertribal Consortium can demonstrate in writing
to the satisfaction of the Regional Administrator that fiscal
circumstances within the Tribe or within each Tribe that is a member of
the Intertribal Consortium are constrained to such an extent that
fulfilling the match requirement would impose undue hardship. In no
case shall the federal share be greater than 90 percent.
Sec. 35.636 Maintenance of effort.
To receive funds under section 319 in any fiscal year, a Tribe or
each member of an Intertribal Consortium must agree that the Tribe or
each member of the Intertribal Consortium will maintain its aggregate
expenditures from all other sources for programs for controlling
nonpoint source pollution and improving the quality of the Tribe's or
the Intertribal Consortium's members' waters at or above the average
level of such expenditures in Fiscal Years 1985 and 1986.
Sec. 35.638 Award limitations.
(a) Available funds. EPA may use no more than the amount authorized
under the Clean Water Act section 319 and 518(f) for making grants to
Tribes or Intertribal Consortia.
(b) Financial assistance to persons. Tribes or Intertribal
Consortia may use funds for financial assistance to persons only to the
extent that such assistance is related to the cost of demonstration
projects.
(c) Administrative costs. Administrative costs in the form of
salaries, overhead, or indirect costs for
[[Page 3803]]
services provided and charged against activities and programs carried
out with these funds shall not exceed 10 percent of the funds the Tribe
or Intertribal Consortium receives in any fiscal year. The cost of
implementing enforcement and regulatory activities, education,
training, technical assistance, demonstration projects, and technology
transfer programs are not subject to this limitation.
(d) The Regional Administrator will not award section 319(h) funds
to any Tribe or Intertribal Consortium unless:
(1) Approved assessment report. EPA has approved the Tribe's or
each member of the Intertribal Consortium's Assessment Report on
nonpoint sources, prepared in accordance with section 319(a) of the
Act;
(2) Approved Tribe or Intertribal Consortium management program.
EPA has approved the Tribes's or each member of the Intertribal
Consortium's management program for nonpoint sources, prepared in
accordance with section 319(b) of the Act;
(3) Progress on reducing pollutant loadings. The Regional
Administrator determines, for a Tribe or Intertribal Consortium that
received a section 319 funds in the preceding fiscal year, that the
Tribe or each member of the Intertribal Consortium made satisfactory
progress in meeting its schedule for achieving implementation of best
management practices to reduce pollutant loadings from categories of
nonpoint sources, or particular nonpoint sources, designated in the
Tribe's or each Consortium member's management program. The Tribe or
each member of the Intertribal Consortium must develop this schedule in
accordance with section 319(b)(2) of the Act;
(4) Activity and output descriptions. The work plan briefly
describes each significant category of nonpoint source activity and the
work plan commitments to be produced for each category; and
(5) Significant watershed projects. For watershed projects whose
costs exceed $50,000, the work plan contains:
(i) A brief synopsis of the watershed implementation plan outlining
the problems to be addressed;
(ii) The project's goals and objectives; and
(iii) The performance measures and environmental indicators that
will be used to evaluate the results of the project.
Pesticide Cooperative Enforcement (Section 23(a)(1))
Sec. 35.640 Purpose.
(a) Purpose of section. Sections 35.640 through 35.645 govern
cooperative agreements to Tribes and Intertribal Consortia authorized
under section 23(a)(1) of the Federal Insecticide, Fungicide, and
Rodenticide Act for pesticide enforcement.
(b) Purpose of program. Cooperative agreements are awarded to
assist Tribes and Intertribal Consortia in implementing pesticide
enforcement programs.
(c) Associated program regulations. Refer to 19 CFR part 12 and 40
CFR parts 150 through 189 for associated regulations.
Sec. 35.641 Eligible recipients.
Eligible recipients of pesticide enforcement cooperative agreements
are Tribes and Intertribal Consortia.
Sec. 35.642 Maximum federal share.
The Regional Administrator may provide up to 100 percent of the
approved work plan costs.
Sec. 35.645 Basis for allotment.
The Administrator allots pesticide enforcement cooperative
agreement funds to each regional office. Regional offices award funds
to Tribes and Intertribal Consortia based on their programmatic needs
and applicable EPA guidance.
Pesticide Applicator Certification and Training (Section 23(a)(2))
Sec. 35.646 Purpose.
(a) Purpose of section. Sections 35.646 through 35.649 govern
pesticide applicator certification and training grants to Tribes and
Intertribal Consortia under section 23(a)(2) of the Federal
Insecticide, Fungicide, and Rodenticide Act.
(b) Purpose of program. Pesticide applicator certification and
training grants are awarded to train and certify restricted use
pesticide applicators.
(c) Associated program regulations. Associated program regulations
are found in 40 CFR parts 162, 170, and 171.
Sec. 35.649 Maximum federal share.
The Regional Administrator may provide up to 50 percent of the
approved work plan costs.
Pesticide Program Implementation (Section 23(a)(1))
Sec. 35.650 Purpose.
(a) Purpose of section. Sections 35.650 through 35.659 govern
Pesticide Program Implementation cooperative agreements to Tribes and
Intertribal Consortia under section 23(a)(1) of the Federal
Insecticide, Fungicide, and Rodenticide Act.
(b) Purpose of program. Cooperative agreements are awarded to
assist Tribes and Intertribal Consortia to develop and implement
pesticide programs, including programs that protect workers, ground
water, and endangered species from pesticide risks and other pesticide
management programs designated by the Administrator.
(c) Program regulations. Refer to 40 CFR parts 150 through 189 and
19 CFR part 12 for associated regulations.
Sec. 35.653 Eligible recipients.
Eligible recipients of pesticide program implementation cooperative
agreements are Tribes and Intertribal Consortia.
Sec. 35.655 Basis for allotment.
The Administrator allots pesticide program implementation
cooperative agreement funds to each Regional Office. Regional Offices
award funds to Tribes and Intertribal Consortia based on their
programmatic needs and applicable EPA guidance.
Sec. 35.659 Maximum federal share.
The Regional Administrator may provide up to 100 percent of the
approved work plan costs.
Pollution Prevention Grants (Section 6605)
Sec. 35.660 Purpose.
(a) Purpose of section. Sections 35.660 through 35.669 govern
grants to Tribes and Intertribal Consortia under section 6605 of the
Pollution Prevention Act.
(b) Purpose of program. Pollution Prevention Grants are awarded to
promote the use of source reduction techniques by businesses.
Sec. 35.661 Competitive process.
EPA Regions award Pollution Prevention Grant funds to Tribes and
Intertribal Consortia through a competitive process in accordance with
EPA guidance. When evaluating a Tribe's or Intertribal Consortium's
application, EPA must consider, among other criteria, whether the
proposed program would:
(a) Make specific technical assistance available to businesses
seeking information about source reduction opportunities, including
funding for experts to provide onsite technical advice to businesses
seeking assistance in the development of source reduction plans;
(b) Target assistance to businesses for whom lack of information is
an impediment to source reduction; and
(c) Provide training in source reduction techniques. Such training
may be provided through local
[[Page 3804]]
engineering schools or other appropriate means.
Sec. 35.662 Definitions.
The following definition applies to the Pollution Prevention Grant
program and to Secs. 35.660 through 35.669:
(a) Pollution prevention/source reduction is any practice that:
(1) Reduces the amount of any hazardous substance, pollutant, or
contaminant entering any waste stream or otherwise released into the
environment (including fugitive emissions) prior to recycling,
treatment, or disposal;
(2) Reduces the hazards to public health and the environment
associated with the release of such substances, pollutants, or
contaminants; or
(3) Reduces or eliminates the creation of pollutants through:
(i) Increased efficiency in the use of raw materials, energy,
water, or other resources; or
(ii) Protection of national resources by conservation.
(b) Pollution prevention/source reduction does not include any
practice which alters the physical, chemical, or biological
characteristics or the volume of a hazardous substance, pollutant, or
contaminant through a process or activity which itself is not integral
to and necessary for the production of a product or the providing of a
service.
Sec. 35.663 Eligible recipients.
(a) The Regional Administrator will treat a Tribe or Intertribal
Consortium as eligible to apply for a Pollution Prevention Grant if the
Tribe or each member of the Intertribal Consortium:
(1) Is recognized by the Secretary of the Interior;
(2) Has an existing government exercising substantial governmental
duties and powers;
(3) Has adequate authority to carry out the grant activities; and
(4) Is reasonably expected to be capable, in the Regional
Administrator's judgment, of administering the grant program.
(b) If the Administrator has previously determined that an Indian
Tribe has met the prerequisites in paragraphs (a)(1) and (2) of this
section for another EPA program, the Tribe need provide only that
information unique to the Pollution Prevention Grants program required
by paragraphs (b)(3) and (4) of this section.
Sec. 35.668 Award limitation.
If the Pollution Prevention Grant funds are included in a
Performance Partnership Grant, the Pollution Prevention work plan
commitments must be included in the Performance Partnership Grant work
plan.
Sec. 35.669 Maximum federal share.
The federal share for Pollution Prevention Grants will not exceed
50 percent of the allowable Tribe and Intertribal Consortium Pollution
Prevention project cost.
Public Water System Supervision (Section 1443(a) and Section 1451)
Sec. 35.670 Purpose.
(a) Purpose of section. Sections 35. 670 through 35.678 govern
public water system supervision grants to Tribes and Intertribal
Consortia authorized under sections 1443(a) and 1451 of the Safe
Drinking Water Act.
(b) Purpose of program. Public water system supervision grants are
awarded to carry out public water system supervision programs including
implementation and enforcement of the requirements of the Act that
apply to public water systems.
(c) Associated program regulations. Associated program regulations
are found in 40 CFR parts 141, 142, and 143.
Sec. 35.672 Definition.
Tribe. Any Indian Tribe having a federally recognized governing
body carrying out substantial governmental duties and powers over any
area.
Sec. 35.673 Annual amount reserved by EPA.
Each year, EPA shall reserve up to seven percent of the public
water system supervision funds for grants to Tribes and Intertribal
Consortia under section 1443(a).
Sec. 35.675 Maximum federal share.
(a) The Regional Administrator may provide up to 75 percent of the
approved work plan costs.
(b) The Regional Administrator may increase the maximum federal
share if the Tribe or Intertribal Consortium can demonstrate in writing
to the satisfaction of the Regional Administrator that fiscal
circumstances within the Tribe or Consortium are constrained to such an
extent that fulfilling the match requirement would impose undue
hardship, except that the federal share shall not be greater than 90
percent.
Sec. 35.676 Eligible recipients.
A Tribe or Intertribal Consortium is eligible to apply for a public
water system supervision grant if the Tribe or each member of the
Intertribal Consortium meets the following criteria:
(a) The Tribe or each member of the Intertribal Consortium is
recognized by the Secretary of the Interior;
(b) The Tribe or each member of the Intertribal Consortium has a
governing body carrying out substantial governmental duties and powers
over any area;
(c) The functions to be exercised under the grant are within the
area of the Tribal government's jurisdiction; and
(d) The Tribe or each member of the Intertribal Consortium is
reasonably expected to be capable, in the Regional Administrator's
judgment, of carrying out the functions to be exercised under the
grant.
Sec. 35.678 Award limitations.
(a) Initial grant. The Regional Administrator will not make an
initial award unless the Tribe or each member of the Intertribal
Consortium has:
(1) Met the requirements of Sec. 35.676 (Eligible recipients);
(2) Established an approved public water system supervision program
or agrees to establish an approvable program within three years of the
initial award and assumed primary enforcement responsibility within
this period; and
(3) Agreed to use at least one year of the grant funding to
demonstrate program capability to implement the requirements found in
40 CFR 142.10.
(b) Subsequent grants. The Regional Administrator will not make a
subsequent grant, after the initial award, unless the Tribe or each
member of the Intertribal Consortia can demonstrate reasonable progress
towards assuming primary enforcement responsibility within the three-
year period after initial award. After the three-year period expires,
the Regional Administrator will not award section 1443(a) funds to an
Indian Tribe or Intertribal Consortium unless the Tribe or each member
of the Intertribal Consortia has assumed primary enforcement
responsibility for the public water system supervision program.
Underground Water Source Protection (Section 1443(b))
Sec. 35.680 Purpose.
(a) Purpose of section. Sections 35.680 through 35.688 govern
underground water source protection grants to Tribes and Intertribal
Consortia under section 1443(b) of the Safe Drinking Water Act.
(b) Purpose of program. The Underground Water Source Protection
grants are awarded to carry out underground water source protection
programs.
(c) Associated program regulations. Associated program regulations
are found in 40 CFR parts 124, 144, 145, 146, and 147.
[[Page 3805]]
Sec. 35.682 Definition.
Tribe. Any Indian Tribe having a federally recognized governing
body carrying out substantial governmental duties and powers over any
area.
Sec. 35.683 Annual amount reserved by EPA.
EPA shall reserve up to five percent of the underground water
source protection funds each year for underground water source
protection grants to Tribes under section 1443(b) of the Safe Drinking
Water Act.
Sec. 35.685 Maximum federal share.
(a) The Regional Administrator may provide up to 75 percent of the
approved work plan costs.
(b) The Regional Administrator may increase the maximum federal
share if the Tribe or Intertribal Consortium can demonstrate in writing
to the satisfaction of the Regional Administrator that fiscal
circumstances within the Tribe or Consortium are constrained to such an
extent that fulfilling the match requirement would impose undue
hardship, except that the federal share shall not be greater than 90
percent.
Sec. 35.686 Eligible recipients.
A Tribe or Intertribal Consortium is eligible to apply for an
underground water source protection grant if the Tribe or each member
of the Intertribal Consortium meets the following criteria:
(a) The Tribe or each member of the Intertribal Consortium is
recognized by the Secretary of the Interior;
(b) The Tribe or each member of the Intertribal Consortium has a
governing body carrying out substantial governmental duties and powers
over any area;
(c) The functions to be exercised under the grant are within the
area of the Tribal government's jurisdiction; and
(d) The Tribe or each member of the Intertribal Consortium is
reasonably expected to be capable, in the Regional Administrator's
judgment, of carrying out the functions to be exercised under the
grant.
Sec. 35.688 Award limitations.
(a) Initial grants. The Regional Administrator will not make an
initial award unless the Tribe or each member of the Intertribal
Consortium has:
(1) Met the requirements of Sec. 35.676 (Eligible recipients); and
(2) Established an approved underground water source protection
program or agrees to establish an approvable program within four years
of the initial award.
(b) Subsequent grants. The Regional Administrator will not make a
subsequent grant, after the initial award, unless the Tribe can
demonstrate reasonable progress towards assuming primary enforcement
responsibility within the four-year period after initial award. After
the four-year period expires, the Regional Administrator shall not
award section 1443(b) funds to an Indian Tribe unless the Tribe has
assumed primary enforcement responsibility for the underground water
source protection program.
Lead-Based Paint Program (Section 404(g))
Sec. 35.690 Purpose.
(a) Purpose of section. Sections 35.690 through 35.693 govern
grants to Tribes and Intertribal Consortia under section 404(g) for the
Toxic Substances Control Act .
(b) Purpose of program. Lead-Based Paint Program grants are awarded
to develop and carry out authorized programs to ensure that individuals
employed in lead-based paint activities are properly trained; that
training programs are accredited; and that contractors employed in such
activities are certified.
(c) Associated program regulations. Associated program regulations
are found in 40 CFR part 745.
Sec. 35.691 Funding coordination.
Recipients must use the Lead-Based Paint program funding in a way
that complements any related assistance they receive from other federal
sources for lead-based paint activities.
Sec. 35.693 Eligible recipients.
(a) The Regional Administrator will treat a Tribe or Intertribal
Consortium as eligible to apply for a Lead-Based Paint Program grant if
the Tribe or each member of the Intertribal Consortium:
(1) Is recognized by the Secretary of the Interior;
(2) Has an existing government exercising substantial governmental
duties and powers;
(3) Has adequate authority to carry out the grant activities; and
(4) Is reasonably expected to be capable, in the Regional
Administrator's judgment, of administering the grant program.
(b) If the Administrator has previously determined that an Indian
Tribe has met the prerequisites in paragraphs (a)(1) and (2) of this
section for another EPA program, the Tribe need provide only that
information unique to the Lead-Based Paint Program required by
paragraphs (b)(3) and (4) of this section.
Indoor Radon Grants (Section 306)
Sec. 35.700 Purpose.
(a) Purpose of section. Sections 35.700 through 35.708 govern
Indoor Radon Grants to Tribes and Intertribal Consortia under section
306 of the Toxic Substances Control Act.
(b) Purpose of program. (1) Indoor Radon Grants are awarded to
assist Tribes and Intertribal Consortia with the development and
implementation of programs that assess and mitigate radon and that aim
at reducing radon health risks. Indoor Radon Grant funds may be used
for the following eligible activities.
(i) Survey of radon levels, including special surveys of geographic
areas or classes of buildings (such as public buildings, school
buildings, high-risk residential construction types);
(ii) Development of public information and education materials
concerning radon assessment, mitigation, and control programs;
(iii) Implementation of programs to control radon on existing and
new structures;
(iv) Purchase, by the Tribe or Intertribal Consortium of radon
measurement equipment and devices;
(v) Purchase and maintenance of analytical equipment connected to
radon measurement and analysis, including costs of calibration of such
equipment;
(vi) Payment of costs of Environmental Protection Agency-approved
training programs related to radon for permanent Tribal employees;
(vii) Payment of general overhead and program administration costs;
(viii) Development of a data storage and management system for
information concerning radon occurrence, levels, and programs;
(ix) Payment of costs of demonstration of radon mitigation methods
and technologies as approved by EPA, including Tribal and Intertribal
Consortia participation in the Environmental Protection Agency Home
Evaluation Program; and
(x) A toll-free radon hotline to provide information and technical
assistance.
(2) In implementing paragraphs (b)(1)(iv) and (ix) of this section,
a Tribe or Intertribal Consortia should make every effort, consistent
with the goals and successful operation of the Tribal Indoor Radon
program, to give preference to low-income persons.
Sec. 35.702 Basis for allotment.
(a) The Regional Administrator will allot Indoor Radon Grant funds
based on the criteria in EPA guidance in accordance with section 306(d)
and (e) of the Toxic Substances Control Act.
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(b) No Tribe or Intertribal Consortium may receive an Indoor Radon
Grant in excess of 10 percent of the total appropriated amount made
available each fiscal year.
Sec. 35.703 Eligible recipients.
(a) The Regional Administrator will treat a Tribe or Intertribal
Consortium as eligible to apply for an Indoor Radon Grant if the Tribe
or each member of the Intertribal Consortium:
(1) Is recognized by the Secretary of the Interior;
(2) Has an existing government exercising substantial governmental
duties and powers;
(3) Has adequate authority to carry out the grant activities; and,
(4) Is reasonably expected to be capable, in the Regional
Administrator's judgment, of administering the grant program.
(b) If the Administrator has previously determined that a Tribe has
met the prerequisites in paragraphs (a)(1) and (2) of this section for
another EPA program, the Tribe need provide only that information
unique to the radon grant program required by paragraphs (a)(3) and (4)
of this section.
Sec. 35.705 Maximum federal share.
The Regional Administrator may provide Tribes and Intertribal
Consortia up to 75 percent of the approved costs for the development
and implementation of radon program activities incurred by the Tribe in
the first year of a grant to the Tribe or Consortium; 60 percent in the
second year; and 50 percent in the third and each year thereafter.
Sec. 35.708 Award limitations.
(a) The Regional Administrator shall consult with the Tribal agency
which has the primary responsibility for radon programs as designated
by the affected Tribe before including Indoor Radon Grant funds in a
Performance Partnership Grant with another Tribal agency.
(b) No grant may be made in any fiscal year to a Tribe or
Intertribal Consortium which did not satisfactorily implement the
activities funded by the most recent grant awarded to the Tribe or
Intertribal Consortium for an Indoor Radon program.
(c) The costs of radon measurement equipment or devices (see
Sec. 35.820(b)(1)(iv)) and demonstration of radon mitigation, methods,
and technologies (see Sec. 35.820(b)(1)(ix)) shall not, in aggregate,
exceed 50 percent of a Tribe's or Intertribal Consortium's radon grant
award in a fiscal year.
(d) The costs of general overhead and program administration (see
Sec. 35.820(b)(1)(vii)) of an indoor radon grant shall not exceed 25
percent of the amount of a Tribe's or Intertribal Consortium's Indoor
Radon Grant in a fiscal year.
(e) A Tribe or Intertribal Consortium may use funds for financial
assistance to persons only to the extent such assistance is related to
demonstration projects or the purchase and analysis of radon
measurement devices.
(f) Recipients must provide the Regional Administrator all radon-
related information generated in its grant supported activities,
including the results of radon surveys, mitigation demonstration
projects, and risk communication studies.
(g) Recipients must maintain and make available to the public, a
list of firms and individuals that have received a passing rating under
the EPA proficiency rating program under section 305(a)(2) of the Act.
(h) Funds appropriated for section 306 may not be used to cover the
costs of federal proficiency rating programs under section 305(a)(2) of
the Act. Funds appropriated for section 306 and grants awarded under
section 306 may be used to cover the costs of the Tribal proficiency
rating programs.
Toxic Substances Compliance Monitoring (Section 28)
Sec. 35.710 Purpose.
(a) Purpose of section. Sections 35.710 through 35.715 govern Toxic
Substances Compliance Monitoring grants to Tribes and Intertribal
Consortia under section 28 of the Toxic Substances Control Act.
(b) Purpose of program. Toxic Substances Compliance Monitoring
grants are awarded to establish and operate compliance monitoring
programs to prevent or eliminate unreasonable risks to health or the
environment associated with chemical substances or mixtures on Tribal
lands with respect to which the Administrator is unable or not likely
to take action for their prevention or elimination.
(c) Associated program regulations. Refer to 40 CFR parts 700
through 799 for associated program regulations.
Sec. 35.712 Competitive process.
EPA will award Toxic Substances Control Act Compliance Monitoring
grants to Tribes or Intertribal Consortia through a competitive process
in accordance with national program guidance.
Sec. 35.713 Eligible recipients.
(a) The Regional Administrator will treat a Tribe or Intertribal
Consortium as eligible to apply for a Toxic Substances Compliance
Monitoring grant if the Tribe or each member of the Intertribal
Consortium:
(1) Is recognized by the Secretary of the Interior;
(2) Has an existing government exercising substantial governmental
duties and powers;
(3) Has adequate authority to carry out the grant activities; and,
(4) Is reasonably expected to be capable, in the Regional
Administrator's judgment, of administering the grant program.
(b) If the Administrator has previously determined that an Indian
Tribe has met the prerequisites in paragraphs (a)(1) and (2) of this
section for another EPA program, the Tribe need provide only that
information unique to the Toxic Substances Compliance Monitoring grant
program required by paragraphs (a)(3) and (4) of this section.
Sec. 35.715 Maximum federal share.
The Regional Administrator may provide up to 75 percent of the
approved work plan costs.
Sec. 35.718 Award limitation.
If the Toxic Substances Compliance Monitoring grant funds are
included in a Performance Partnership Grant, the toxic substances
compliance monitoring work plan commitments must be included in the
Performance Partnership Grant work plan.
Hazardous Waste Management Program Grants (P.L. 105-276)
Sec. 35.720 Purpose.
(a) Purpose of section. Sections 35.720 through 35.725 govern
hazardous waste program grants to eligible Tribes and Intertribal
Consortia under the Departments of Veterans Affairs and Housing and
Urban Development, and Independent Agencies Appropriations Act, 1999,
P.L. 105-276, 112 Stat. 2461, 2499; 42 U.S.C. 6908a (1998).
(b) Purpose of program. Tribal hazardous waste program grants are
awarded to assist Tribes and Intertribal Consortia in developing and
implementing programs to manage hazardous waste.
Sec. 35.723 Competitive process.
EPA will award Tribal hazardous waste program grants to Tribes or
Intertribal Consortia on a competitive basis in accordance with
national program guidance. After the competitive process is complete,
the recipient can, at its discretion, accept the award as a Tribal
hazardous waste program grant or add the funds to a Performance
Partnership Grant. If the recipient
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chooses to add the funds to a Performance Partnership Grant, the Tribal
hazardous waste program work plan commitments must be included in the
Performance Partnership Grant work plan.
Sec. 35.725 Maximum federal share.
The Regional Administrator may provide up to 100 percent of the
approved work plan costs.
Underground Storage Tanks Program Grants (P.L. 105-276)
Sec. 35.730 Purpose.
(a) Purpose of section. Section 35.730 through 35.733 govern
underground storage tank program grants to eligible Tribes and
Intertribal Consortia under P.L. 105-276.
(b) Purpose of program. Tribal underground storage tank program
grants are awarded to assist Tribes and Intertribal Consortia in
developing and implementing programs to manage underground storage
tanks.
Sec. 35.731 Eligible recipients.
Eligible recipients of underground storage tank program grants are
Tribes and Intertribal Consortia.
Sec. 35.732 Basis for allotment.
The Administrator allots underground storage tank program grant
funds to each regional office based on applicable EPA guidance.
Regional offices award funds to Tribes and Intertribal Consortia based
on their programmatic needs and applicable EPA guidance.
Sec. 35.735 Maximum Federal share.
The Regional Administrator may provide up to 100 percent of the
approved work plan costs.
[FR Doc. 01-219 Filed 1-12-01; 8:45 am]
BILLING CODE 6560-50-P